June Margaret Baudinet v Ellen Tavioni and Meremaraea Velma Tinirau MacQuarie

JurisdictionUK Non-devolved
JudgeLord Mance
Judgment Date22 October 2012
Neutral Citation[2012] UKPC 35
Date22 October 2012
Docket NumberAppeal No 0078 of 2010
CourtPrivy Council
June Margaret Baudinet
(Appellant)
and
Ellen Tavioni and Meremaraea Velma Tinirau Macquarie
(Respondent)

[2012] UKPC 35

Before

Lord Phillips

Lord Walker

Lady Hale

Lord Mance

Lord Carnwath

Appeal No 0078 of 2010

Privy Council

Appellant

Ross Holmes

Kate Davenport

Justin Wall

(New Zealand and Cook Islands Bar)

(Instructed by Ross Holmes Lawyers L.P)

Respondent

Rebecca Edwards

Tina Browne

Sarah Inder

(New Zealand and Cook Islands Bar)

(Instructed by Browne Harvey & Associates P.C)

Heard on 18–19 April 2012

Lord Mance
Introduction
1

The first issue in this appeal is whether the High Court of the Cook Islands has power, under section 44 of the Judicature Act 1980–81, to correct an alleged slip in an order made in the Cook and Other Islands Land Titles Court in 1903. If there is such a power, the next issue is whether there was a slip. If there was, the final issue is whether it should be corrected now. Included in the principal issue is whether the application to correct the alleged slip is foreclosed by or abusive in the light of two previous sets of proceedings brought by the appellant's family in respect of the same land.

2

The appellant claims the 53 acre parcel of land known as Tuarea Nui Section 40 in the vaka (tribal territory) of Takitumu on the south side of the island of Rarotonga. The land was awarded to Makea Nui Takau, the Ariki (tribal chief) of the Makea family who stemmed from Avarua on the north side of the island, by Order of the Land Titles Court dated 10 August 1903 in 1903. The appellant claims it for the Ngãti Raina family. The Makea and Ngãti Raina families are not related by blood. Some members of the Ngãti Raina family lived on the land until 1932, when they were evicted by Makea Nui Tinirau, the then Ariki of the Makea family. Since 1932 the Ngãti Raina have had a sense of grievance, which they have twice previously sought to pursue, on a different basis to the present, by the two previous sets of proceedings which came to court in 1937 and 1950.

3

The Land Titles Court was set up by an Order in Council of 7 July 1902 made by the Governor of New Zealand, acting under the powers given to him by section 6 of the Cook and Other Islands Government Act 1901 (see the associated " Tumu" case: Descendants of Utanga and Arerangi Tumu v Descendants of Iopu Tumu [2012] UKPC 34, para 4). Lieutenant Colonel Walter Gudgeon was appointed the first Resident Commissioner of the Islands and also the Chief Judge of the Land Titles Court. The Order in Council required there to be at least two judges, and Pa Ariki Maretu, one of the two Ariki of the Takitumu vaka, was appointed as second judge.

4

The court began sitting on 2 April 1903. On 3 June 1903, the court heard a series of applications by Makea Nui Takau relating to various parcels of land, including Tuarea Nui Section 40. The Minute Book for the day, of which the Board has seen a colour photocopy, contains the following handwritten words (punctuation supplied):

"Makea applicant. Makea: I claim this land as my own land. No objections. Land awarded to Makea Takau. Land restricted from sale or lease except by permission of court. A life interest only no power of devise."

The word "Court" is written above the word "Makea", which has been crossed out with two short straight lines. The parties are agreed that the deletion was by a quill pen, that the word "court" appears to be in the same handwriting as the rest of the writing, and it corrects a typographical error. But the words "A life interest only no power of devise" have also been crossed out, with a single wavy line. The parties agree that those words too were written in a quill pen in what appears to be the same handwriting as the rest of the Minute Book entry for that day, but they do not agree upon when they were written or how they came to be crossed out. The factual question which arises is whether the Order drawn up and signed by Chief Judge Gudgeon on 10 August 1903 was correct in omitting the handwritten words.

5

The Order was in a standard form for what were then known as native titles. It declared "the Natives whose names are set out in the first column of the Schedule indorsed hereon…are, and they are hereby declared to be, the owners of the parcel of land to be called or known as" (the name of the parcel is then written in by hand)…. ; "and it is hereby declared that so much and such part of the share of each owner as is set out in the third column of the said Schedule shall be inalienable". The Schedule, which would have been on the back of the order, records only one name, Makea Takau, in the first column, and the part declared inalienable in the third is "The whole" (for the form of the Schedule, see the Tumu case, para 8).

6

The block file (titles record) for this parcel begins with the Order on Investigation of Title of 3 June 1903 and contains the following note:

"The minutes of the Court at first restricted the interest of Makea Takau to 'a life interest only no power of devise'. This restriction appears to have been deleted later by means of ink pencil, but such alteration has not been initialled by the Judge of the Court."

Thereafter, however, orders were made on the basis that there was no such restriction. Thus, there was a series of succession orders vesting the interest in the land in favour of her successors as Makea Arikis, in each case expressing this to be by virtue of his or her office as Ariki. The first was on 7 March 1912 vesting the interest of Makea Takau in Rangi Makea as from 1 May 1911, the second on 20 October 1926 vesting the interest of Rangi Makea in Makea Nui Tinirau Ariki as from 27 July 1922, the third on 26 July 1944 vesting the interest of Makea Nui Tinirau Ariki in Makea Nui Takau Ariki as from 26 January 1939, and the fourth on 14 March 1966 vesting the interest of Makea Nui Takau Ariki in Makeanui Teremoana Ariki as from 15 September 1947. The first respondent represents the current Makea Kopu Ariki and the second respondent is the daughter of Makeanui Teremoana Ariki.

7

The claim by successive Makea to inherit the land "by virtue of [their] office as Ariki" is in issue in separate proceedings brought by members of the Makea family represented by Teariki Akamoeau Manarangi. The Makea family claims that the land is and has always been Makea family land, not Makea Ariki or title land, and that Makea Takau could only claim and have been awarded it in 1903 as, in effect, trustee for the whole family. (One point relied upon in this connection is that the land is in the vaka of Takitumu, where Pa and Kainuku were Ariki, and outside the district to which the Makea Ariki chiefly title relates, which is Avarua some ten miles away on the north coast, in which connection it is in dispute whether Arikis can hold title land in a district other than that from which their chiefly title stems.) The appellant's case is much more fundamental. She claims that the original award of the land in 1903 to Makea Takau in any capacity was wrong. Her claim on behalf of the Ngãti Raina is not therefore related to or contingent on the resolution of the dispute between the Makea Ariki and the Makea family. It is inconsistent with both.

8

In the 1937 proceedings application was made on behalf of the Ngãti Raina family for the title to be amended. In a judgment dated 31 March 1937, Chief Judge Ayson dismissed the claim, pointing out at the outset that under section 390 of the Cook Islands Act 1915 there was no power to grant a re-hearing or to vary or annul any order after it was signed and sealed. Section 391 did permit the court to annul any order obtained by fraud, but fraud was not then alleged. Nevertheless, the judge went on to hear evidence and express views on the merits of the Ngati Raina claim. He found that the family had been notified of and been present at the hearing on 3 June 1903 and raised no objection. There was conflicting evidence of their occupation, but it appeared to Chief Justice Ayson that they were on the land only on sufferance and at the will of Makea Nui Tinirau, to whom they had unwisely offered insult at the end of 1932, whereupon he had put an end to their occupation. They could not show any real right to the land.

9

Then came section 32 of the Cook Islands Amendment Act 1946, which gave the Land Appellate Court power to grant a rehearing on the application of any person claiming to be prejudicially affected by an earlier order, provided that the application was made within 12 months of the commencement of the Act. So the Ngati Raina made such an application. This too was dismissed by the Land Appellate Court in 1950, relying on the evidence given in the 1937 case, on the ground that there was no prospect of the applicants being able to show title before the Native Land Court (as the Land Titles Court had become) if given the opportunity to do so.

The present proceedings
10

The present proceedings were begun in 2004. The amended pleading of December 2007 applies to the High Court, which now has the land titles jurisdiction: (1) for an order under section 44 of the Judicature Act 1980–81, that the order of 3 June 1903 be corrected to restore the words "A life interest only no power of devise" (alternatively for judicial review of the deletion) and (2) for an order annulling the Order of 3 June 1903 under section 391 of the Cook Islands Act (alternatively for judicial review of the order) on the ground of fraud. Should either succeed, there would have been no-one entitled to a succession order in 1912, or later, and it is submitted that the whole question of title to the land could be re-opened. Thus the pleading goes on to apply for the succession orders to be revoked, for an investigation of title to the land, and for the various leases and occupation rights granted in relation to the land to...

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    • Grand Court (Cayman Islands)
    • 22 de março de 2023
    ...the general applicability of Henderson v Henderson principles) Yearwood v Yearwood [2020] UKPC 26, [30]–[31], and Baudinet v Tavioni [2012] UKPC 35, [25]–[27]. 44 While the first instance English authorities cited above indicate that it may be harder to find a Henderson abuse of process w......
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    • Grand Court (Cayman Islands)
    • 22 de março de 2023
    ...the general applicability of Henderson v Henderson principles) Yearwood v Yearwood [2020] UKPC 26, [30]–[31], and Baudinet v Tavioni [2012] UKPC 35, [25]–[27]. 44 While the first instance English authorities cited above indicate that it may be harder to find a Henderson abuse of process w......
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    ...plots within the Takuvaine tapere ((district) in the Avarua vaka (territory). 2 The judgment of the Board in the associated case of Baudinet v Tavioni [2012] 35 emphasises the special character and importance of ancestral property to the indigenous peoples of the Cook Islands, which transce......
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    • Construction Law. Volume III - Third Edition
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