HERALD WEEKLY ISSUE 608: 21 March 2012

Having spent the last fifteen years researching and litigating through all Courts the Tumu vs Tumu dispute and in the course of that discovered all relevant Orders from the early 1900s which various Counsel are now taking for granted, I think it fair to say that Tumu vs Tumu, now on its way to the Privy Council, has given me sufficient background to comment and make some reasonably intelligent observations on 390A judgments.
My interest is not that of an interested party in the sense that I have an interest in the land but rather as a member of the general public who has been following this issue for some time and believes a grave injustice has been done to Ngati Makea which is now confronted by an adverse judgment which is unappealable.
I speak here of Chief Justice Weston’s judgment delivered on 28 March 2012 in the successors of Makea Takau’s challenge to the ownership by the Cook Islands Christian Church of that large tract of land of Makea’s known as Tepuka 106C,Avarua and comprising some 23.67 Hectares (58.49 acres).
That Judgment -
a) considered the Cook Islands Christian Church Incorporation Act 1968-69 highly material to how the Chief Justice might exercise his jurisdiction under 390A
b) declared that Tepuka 106C had been properly investigated and alienation confirmed to the LMS in1904 (Appln No.56)
c) declared that a number of different lands that had either been awarded to the LMS or alienated by the native land owners and were vested in the LMS for such estate as is limited by any conditions and restrictions (Appln No.71) was within the jurisdiction of the 1904 Court to make
d) stopped short of accepting the Church’s Counsel’s proposition that the Church be entitled to consider it had a freehold estate
e) confirmed the authority of the Court to cancel the 1905 Order on Investigation of Title in 1908
f) regarded the delay in bringing this action a relevant factor in exercising his discretion
g) considered that Chief Judge Gudgeon was astute when it came to ensuring he acted within jurisdiction and found that he did so
h) refused the relief sought by the Applicants
This judgment is puzzling for a variety of reasons.
a) The Private Act, the Cook Islands Christian Church Incorporation Act 1968-69 was amongst other things the vehicle for transferring the land holdings of the LMS to the CICC (s.7) . It was not purporting to be taking land from the native landowners and giving it to the CICC however it was implicit that those lands being so vested were lawfully acquired in the first place otherwise, and by way of example, why not include the land where the CITC main store is for good measure? To have done so without there having been any prior conveyance to the LMS would be a case of compulsory acquisition and the whole Act’s validity would then be challengeable as being in breach of Article 41 of the Constitution so, was Tepuka 106C lawfully acquired or is the CICC Act invalid and a nullity?
b) The Judgment regarded the 1904 order of Confirmation of Alienation in the nature of an omnibus order and dealt simultaneously with confirmation and investigation. This just could not have been so. Although the Chief Justice rightly drew a parallel between ‘ascertainment’ and ‘investigation’ at para 29 wherein he states that the two concepts ‘are very closely allied’ Form 1 removes any doubt because the Form is entitled Application for Investigation of Title to Land and then in the text confirms that ‘ascertain’ and ‘investigation’ are one and the same thing. The trouble with this recognition of the inter-changeability of the two terms is that Mr Hutchin of the LMS who filed the application for confirmation of alienation (Appln No. 56) could not also have been filing an application for investigation of title because such applications were required to follow Form 1 which made it abundantly clear that the applicant had to be ‘a member of the Maori race’ which Mr Hutchin and/or the LMS definitely were not.
The Gazette notice of 24 December 1903 listed the application for confirmation but there was no application at that time from Makea as that was not to come before the Court until 1905.
On this basis then the 1904 Confirmation of Alienation should not have been able to proceed for two reasons
(i) Rule 47(2) of the 1902 Rules and Regulation prevented confirmation before title had been ascertained and
(ii) Title was not ascertained until 1905
That being the case it should be argued that the 1904 confirmation was void and that it should have been resought after title was ascertained in 1905 however if my following of the proceedings in Court on 28 March 2012 are correct the Court was taking the position that as Makea was in Court that day in 1904 it followed that as she was acquiescing in the alienation it was implicit that she was also seeking that the title be investigated at that same time. The difficulty with this conclusion is why then was there no signed and sealed Order on Investigation of Title emanating from the 1904 Court sitting over Gudgeon CJ’s signature with associated survey plan and further why then would Makea and the Court go through the charade in 1905 of making application again on the appropriate form with a properly signed and sealed order recording the awarding of title to Makea on 15 June 1905 and authenticated on 10th November 1905?
Crucial to the Court’s understanding of the issues was that ascertainment of title was a key prerequisite to confirmation and that such ascertainment required a formal application from a member of the Maori race. Counsels Carr and Manarangi both made these points repeatedly in their submissions. Counsel for the Church however was silent on both relying instead it seems on the quaint notion that a Vesting Order applied for by a foreign entity satisfied the requirements of a member of the Maori race applying to the Court to investigate and ascertain title..
It is therefore contended that it is inconceivable that there was both an Investigation of Title of Tepuka 106C in 1904 and then another in 1905. The only Investigation of
Title with all the proper documentation is that of 1905 therefore the confirmation of alienation likewise could not have proceeded and is invalid. That being so Tepuka 106C could not be regarded as lawfully vested in the LMS because the matter was not revived after the 1905 investigation and that being so attempts to legitimise matters in the CICC Incorporation Act 1968-69 have rendered the entire Act vulnerable to constitutional challenge.
However the Court took the position that 106C was lawfully vested in the Church by reason of s.7 of the CICC Incorporation Act and that the 1905 Order on Investigation of Title being inconsistent with the alleged (because there is no evidence of it) ascertainment/investigation in 1904 prompting Gudgeon after nearly three years (1905-1908) to realise he had a problem and allegedly cancelled it. Allegedly because there is no evidence of any hearing which would be contrary to Rule 87 which required any alteration to the names listed on the title should be ‘in open Court with due notice to all parties’ and, further, running a line through the officially signed and sealed Order and writing Cancelled with no signature, initialling or Court seal hardly qualifies as a responsible lawfully supported official act deserving of the status it is being accorded.
c) The Chief Justice posed the question that if Application No.56 fell did it not follow that Application No.71 likewise fell because of the inconsistency of the acts of 1904 and 1905? I don’t believe so. Application No. 56 dealt solely with Tepuka 106C. If there were any question as to the validity of the Confirmation of Alienation that would only impact adversely upon the actions pursuant to Application No.71 to the extent that Tepuka 106C was included in the lands being vested however although it was pointed out that Tepuka 106C was not specifically referred to in the Application the Chief Justice found that it was the intention that it be included. Perhaps so but as the validity of the Confirmation of Alienation is being questioned this would cast suspicion upon the 1904 vesting order embracing it.
d) The Court did not address the question as to whether the Church had an estate in freehold and I think it appropriate that it did not especially as there are reversionary rights claimed with some of them except if there is no Makea presence on the title of 106C and therefore no rights of succession and consequently no standing it is doubtful whether Ngati Makea could even challenge the Church on compliance with the conditions of the ancient gift of 1864. The Chief Justice took the view that it would be odd that standing should be so limited but stood that question over to the Land Division. It is clear that the Church in endeavouring to secure a freehold status for 106C is mindful of the conditions attaching to the original gift. Not having Ngati Makea on the title and a freehold estate would give it absolute possession and the freedom to do as it pleased with no regard to any constraints or challenges that the successors of the original grantor might otherwise mount.
e) The judgment confirmed that the Court in 1908 had authority to cancel the Order on Investigation of Title leaving Ngati Makea with no title to succeed to nor any chance of acquiring the necessary standing to challenge the Church’s use of its land. The Register of Titles page for 106C has no reference on it to the original owners so even if the 1905 cancellation were valid why is the 1904 purported investigation not listed? The simple answer is because there wasn’t one nor, for the reasons previously advanced, could there have been one yet the grounds, according to the judgment were that there could not have been two because of the inconsistency so the 1905 was the casualty theoretically leaving just one but this too was not entered on the title
The authority that Gudgeon CJ allegedly employed, according to the judgment, was s.25 of the 1902 Order in Council establishing the Land Titles Court and the grounds for its use had to be that the 1905 signed and sealed order did not correctly record the intended decision of the Court in that it was defective and qualified for a s.25 amendment on the Chief Judge’s own motion. But there was a problem with such justification. Quite aside from the grounds mentioned above that any alteration needed to be conducted in open Court with due notice to all parties and that there was in fact a defect that required such correction there was another more fundamental problem and that was simply that the Land Titles Court in 1908 had no powers to do anything!
In Tumu vs Tumu we successfully convinced both the High Court and the Court of Appeal that all decisions of the Land Titles Court after the death of Judge Pa Maretu in 1906 until 1913 were invalid because the Order in Council establishing the Court required there to be two Judges and as Judge Pa was not replaced the Court was not legally constituted. Our opponents conceded this fact before the High Court so it proceeded forth as common ground. What is reasonably certain is that Counsels for the Applicants before Weston CJ did not know this otherwise they would have made mention of it it being overwhelming useful to their case. Counsel for the Church however was very much aware of it but again remained silent. I am not sufficiently familiar with the ethics that prevail in situations like this and perhaps Counsel was entitled to keep the bench from knowing this vitally important fact but it would appear that the Chief Justice being so uninformed ventured forth with his decision unaware that vitally important material evidence had been denied to him.
The consequences of this are these:
(i) there was no legally constituted Court in 1908
(ii) s. 25 was unavailable to Gudgeon CJ
(iii) the cancellation of the 1905 Order on Investigation of Title was therefore ultra vires (unauthorised at law)
(iv) the cancellation was ineffective and the 1905 Order prevailed
(v) Gudgeon who was reappointed for a short term commission in 1913 as Chief Judge to tidy up this mess after the Court’s constitution was adjusted to allow for one judge did not readdress his faulty cancellation (because had he done so both parties to this action would have been scrambling to find it) so it is a reasonable presumption that as it has not surfaced it never existed
(vi) the claim that there was an Investigation of Title in 1904 is not supported and the Confirmation of Alienation therefore could not have proceeded and its validity is therefore suspect and by extension so is the validity of the CICC Incorporation Act
(vii) holding that Gudgeon acted correctly in invoking s.25 and that the cancellation was lawful Weston CJ has inadvertently allowed himself to be drawn into breach of s. 390A(10) which declares that any decision pursuant to 390A shall not interfere with any order made upon investigation of title thus rendering, at least in part, that part of his judgment ultra vires because up until then there was a proper order which Weston CJ’s decision purports to negate
(viii) S.399 (2) of the Cook Islands Act is the appropriate reference for the question of validity. The Court of Appeal agreed that the absence of jurisdiction flowing from an unconstituted Court went beyond an irregularity to the nature or substance and the presumption of validity could not apply.
f) Delay. Any delay on the part of the Applicants in bringing this action is not the result of any inaction or dilatoriness on the part of Ngati Makea but rather can be traced directly to the failure of Gudgeon CJ to properly administer the legislation with which he was charged and the fact that until Tumu vs Tumu the historical material to support a challenge was unavailable in the Cook Islands.
g) I believe it has been shown that Chief Judge Gudgeon was perhaps not quite as astute in ensuring that he acted within jurisdiction.
h) The Chief Justice has refused the relief sought by the Applicants and that refusal is not subject to challenge on appeal however s.44 of the Judicature Act is still available and would allow the Chief Justice to review his decision or should he be so inclined refer the application to the Land Division for enquiry and report.

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