In Re Ina Vakatini [1981] CKCA 1 (4 September 1981)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA
LAND DIVISION

IN THE MATTER
of Section 409 of the Cook Islands Act 1915

AND

IN THE MATTER
of the Application by INA VAKATINI to
determine the right to hold the title of Vakatini Ariki

Coram: Cooke P., Donne C.J. and St. John J.
Hearing: 2 September 1981

G. Henry for Appellant
R.W. Tylor for Respondent.

Date of Judgment: 4.9.1981

JUDGMENT OF COURT DELIVERED BY COOKE P.

Section 409 of the Cook Islands Act 1915 provides in paragraph (f), added in 1923, that the Land Court shall have jurisdiction to hear and determine any question as to the right of any person to hold office as an Ariki or other Native Chief of any Island. On an application under that provision Judge Dillon (now Mr Justice Dillon) declared, for reasons fully given by him in a judgment dated 14 April 1980, that Ina Vakatini the eldest son of the previous title holder Te Pou Vakatini is the rightful person to hold the title. An appeal against that decision has been brought by another claimant, Toua Paitai, and the case on his behalf was presented to us by Mr Henry, who was given leave to appear for the appellant, and who put the matters that could be raised in support of the appeal in a fair and candid manner.

The main contention of Mr Henry was not that the title goes round according to custom, as was suggested in some of the evidence given in the Land Court, but that this Court should in some way remit the case to the Kopu Ariki for election of a successor to the title. There is a dispute as to the composition of the Kopu Ariki. Mr Henry submits that it is for the Ngati Vakatini – tribe, he says, of more than one thousand people – to determine that question. It is clear from the timetable suggested by him in his written submissions that the procedure proposed is likely to be time-consuming and could well result in no clear-cut solution but rather yet another reference to the Court.

That consequence would not be fatal to the appeal if it could be shown that the judgment appealed from is clearly in error. The burden is on the appellant to show that the Judge was wrong, but little attention was directed in argument to the careful judgment under appeal in which he dealt in considerable detail with the arguments of the counter-claim and made findings of fact on the evidence. It is important to emphasize, as the present is the first judgment to be delivered by this Court as recently constituted, that, like other appellate Courts, we will not likely interfere with findings of fact at first instance, if reached with due care and consideration of all relevant circumstances. Our concern must be primarily with questions of principle.

Far from satisfying us that the judgment under appeal was wrong, the argument has shown that it was in harmony with the most important of the previous decisions cited. We need not to deal with some earlier decisions and observations, because there can be no doubt that the judgment of Mr Justice Ostler in the Supreme Court of New Zealand in 1941, concerning the Ariki of Makea Nui, on appeal from Judge Ayson sitting in the Native Land Court of the Cook Islands, is the leading case hitherto. It is evident from reading of that extensive judgment that it likewise was a carefully considered one. We have no doubt that the respondent is right in saying, as Mr Taylor his counsel did say, that this judgment relating to sister title on Rarotonga is likely to have been relied on when subsequent successions were accepted without litigation.

So far as now relevant, the essence of Mr Justice Ostler’s judgment is in this sentence: “The native custom has been clearly proved that the eldest child has the right to succeed if suitable, and it is only if unsuitable that the Kopu Ariki have any to pass him or her over and confer the title on another member of the family.”

Judge Dillon in effect came to exactly the same finding on the evidence in this case. We are sure that he was well entitled to do that and it is reassuring that his finding accords with the decision of Mr Justice Ostler concerning the sister some forty years ago.

It emerged plainly from Mr Henry’s argument that what really moves the appellant is a grievance nearly two centuries old. Te Poave (son of Makea Tinirau), born in 1779, was adopted soon after birth by the Vakatini from whom the title is traced. He was succeeded (it is said in about 1847) by his eldest son, Manarangi, who was in turn succeeded by his eldest son, who was in turn succeeded by his eldest son (Makea Daniela). The latter had no issue and was succeeded by his brother Ara Ua Te Pou; no challenge has been made in this Court to the validity of the succession; it arose because of the principle of primogeniture could not be applied. Ara was in turn succeeded by the Te Pou Vakatini, his eldest son and the father of Ina.

We do not consider that any serious challenge can be made to the line of succession unless Te Poave, as an adopted son, is to be treated as having lesser rights than a natural son. No Court decision, no text by a learned writer, and no clear evidence of custom or usage has shown that this Court should adopt such a view. On the contrary there is the acquiescence of the tribe over some 175 years not indeed without some controversy as Mr Henry pointed out but at least without Court challenge after a Court came into existence, in a succession on the footing that the adopted child had the full rights of a natural child. It is far too late for this argument to be resurrected. The devolution of the Vakatini title is history which no Court can rewrite.

Ina has acted as Ariki for some years, and after what he claims was a proper election by the Kopu Ariki. If there were any real doubt as to his fitness, it would be competent for the Court in its discretion to refer that question to the Kopu Ariki. In that event a determination of the exact composition of the Kopu Ariki might be necessary. As it is, however, the Judge of the Land Court had not doubt about Ina’s fitness for the title. Accordingly we see no need for a reference to the Kopu Ariki in this instance.

For these reasons Judge Dillon’s judgment is affirmed and the appeal dismissed.

R.B COOKE, P