Roiauri v Heather [1985] CKCA 5; CA 2.1985 (8 October 1985)

IN THE COURT OF APPEAL OF THE COOK ISLANDS

CA. 2/85

IN THE MATTER
of Rule 350 of the Code of Civil Procedure of the High Court

AND

IN THE MATTER
of an Application for Succession to
TEAUKURA ROI by MAUARIKI ROIAURI
Appellant

AND

An Application for Succession to
TEAUKURA ROI by MENNIE HEATHER (nee Roi)
Respondent

Coram: Sir Thaddeus McCarthy (presiding)
McMullin J
Sir Clinton Roper

Hearing: 26 August 1985

Counsel: Mr V.A.K.T. Ingram for appellant
Mrs T.P. Browne for respondent.

Judgment: 8^th October 1985.

JUDGMENT OF THE COURT DELIVERED BY SIR THADDEUS McCARTHY

This appeal is in an action between two sisters for the right to occupy an area of Native Land known as part Arerenga Section 11, in the district of Arorangi in the island of Rarotonga. It raises a question relating to the succession in interests in Native Land in the Cook Islands which has acquired importance and led to discussion. We heard the appeal at Rarotonga on 26 August. In our view the appeal fails at the threshold by reason of a lack of authority to do what the appellant wishes, as we shall later say, and strictly no more than that must be said. However the Court sat in Rarotonga, and not in New Zealand as more often happens, purposely because questions pertaining to the rights to Native Lands were involved in a number of appeals, and consequently we think it desirable to say something concerning the particular native custom argued in this appeal and its effect on succession to occupation rights in land, even though what we say may be considered somewhat obiter.

Succession to Native Land in the Cook Islands follows Native Custom. The persons entitled on the death of a native to succeed to his real estate, and the shares in which they are so entitled, are determined in accordance with Native Custom so far as such custom extends; and so far as there is no Native Custom applicable to the case, in the same manner as if the deceased was a European (s.446 Cook Islands Act 1915). Native Custom provides for a natural child to succeed to the land interests of both his parents, but this custom is modified in some respects when the rights of an adopted child to succeed are considered. That is, of course, nothing more than a most simple outline.

The particular custom which is the foundation of the occupation right, the succession to which is what this case is concerned with, is that of Akonoanga Oire. That custom developed in early missionary days, when the arikis made house sites available, close to the centres of worship which the missionaries had established, to induce the population of the islands to move from mountain or other remote areas to the settlements around those centres. This practice is well documented in historical studies, and early came to be recognised and enforced by the courts. Its earliest available definition by a court seems to be a statement recorded in Minute Book 1/69, relating to a specific area of land, Akaoa, when the then Chief Judge of the then Land Court, Lt Col W.E. Gudgeon said:

"... But on all the other sections, there are occupation rights which in many instances give a title superior to that of the real owner of the land. It will therefore be our duty to define these rights, and in doing so we will follow the arrangement made with the Mission. When the people were brought together and induced to build in the vicinity of the church in order to be near religious instruction.

The arrangement as we read it is this. That all those who built houses should have an inalienable right to live on the piece of land chosen by them so long as the family lived or continued to occupy the land. Therefore in awarding this land to Tinomana and Te Uri the award will be subject to the following rights.

1. That each house holder shall pay one shilling in the month of January of each year as an atinga for the land.

2. That so long as the descendants or near relations of the present owner are alive they shall be deemed to be the absolute owner of House and land. But in the event of the family dying out Tinomana or any future representative of the Arikishop may apply to this Court to replace him or her in possession.

3. The occupier may sell or lease his or her rights acquired in the Section that is his or her own life interest but nothing further and any rent received shall be property of the occupier.

4. Any owner of a house may purchase. The soil on which his or her house is built and become the absolute owner provided such arrangement be made where the Court and with its consent.

5. The one shilling per annum shall represent the value of Tinomana's interest in each section during the occupation of the house owner." (our italics)

In January 1908 there is a further statement by the same Judge MB.4/21A which is often quoted:

"From information supplied to me by the Revd Mr Hutchin, it would seem that the first regular, or I may say legal laying out of this township of Avarua took place in 1827, when the Revd Mr Buzzacott and the land Chiefs of Avarua came to an understanding somewhat to the following effect. That within certain defined limits extending from the Avatiu creek towards Tupapa, all persons desirous of living near the Church might take up a section on either side of the Main road in order to build a house thereon and by so doing acquire a residential right for themselves and descendants. I am however of opinion that in all cases where a Resident shall die childless and without near relatives, the consent of the Atu Enua is necessary to validate the transfer of the house to a stranger. There may be circumstances which would justify the court in departing from this rule, but speaking generally the land should return into the hands of the Atu Enua where a man dies without Heirs of his own blood."

(our italics)'

Finally, in relation to succession, we should quote what is perhaps the most authoritative passage of all. It is a Judgment of Chief Judge Morgan, a man of exceptional knowledge and experience of Native Custom - he having served for many years as an official of the Land Court, followed by twenty years as Judge of that Court. In this Judgment, relating to succession to Edward Goodman and Others delivered in 1955, MB. 22/385, Chief Judge Morgan stated the custom thus:

"Briefly, then, the present custom of succession is as follows:

(1) A person who has left the family or tribe is not entitled to succeed to his parents' rights. This is ancient custom as well as present-day custom but, with changing conditions, it would be unusual for a person to leave the family absolutely, under present-day conditions. The circumstances in each individual case can be the only guide to show whether or not a person has left the family.

(2) Notwithstanding the fact that a person has left his family or tribe, he, or his descendants, or some of them, may be accepted back, in which case those who are so accepted back are entitled to succeed to such rights as are allowed them by the family or tribe. These rights do not extend to other descendants who may not be so accepted back.

(3) Subject to the limitations set out in (1) and (2) above, all the children, whether male or female, of a deceased Native are entitled to succeed (Declaration of 1984), in equal shares.

(4) If a Native dies without issue (or the issue become extinct or leave the family), the interest of the deceased goes back to the source from which it came. If that person is dead then it goes to the next of kin of that source, excluding those who have left the family or tribe but including any who may have been accepted back." (our italics)

Later explicit statutory power to make orders for occupation rights and to define the terms of those rights was conferred on the Land Court (now High Court, Land Division) by s.50 Cook Islands Amendment Act 1950.

That section reads as follows:

"(1) In any case where the Land Court is satisfied that it is the wish of the majority of the owners of any Native land that that land or any part thereof should be occupied by any person or persons (being Natives or descendants of Natives), the Court may make an order accordingly granting the right of occupation of the land or part thereof to that person or those persons for such period and upon such terms and conditions as the Court thinks fit.

(2) Any person occupying any land under such order of the Court shall, subject to the terms of the order, be deemed to be the owner of the land under Native custom.

(3) No order shall be made by the Court under this section without the consent of the person or persons to whom the right of occupation is granted."

The order in this case was made before the section was enacted and under the general power of the Court to make orders carrying into effect an investigation of the ownership of land.

We come now to the history of the specific occupation right and its involvement in this action. It appears first in a minute of an order on Investigation of Title, dated 6 August 1907, recorded in Minute Book No. 3, pg 352 as follows:

"House site Tautu land of Ati Tinomana claims that this contains a small piece of hers. The Court - already settled in Court after enquiry. Order in favour of -

Tautu m.a.

Te Ariki Tautu m.a.

for housesite on usual terms."

The Title to this land is as follows;

"Order on Investigation of Title vesting land in following persons -

1. Tautu m.a.

2. Te Ariki Tautu m.a.

for an occupation right. Ati Atu Enua subject to payment by the-owner of the Occupation Right to Ati and his successors of one shilling on the 1st day of January in each year. Upon the death of Tautu and Te Ariki Tautu and failure of their direct descendants the land to revert to Ati or his successors."

The sealed order of the Court implementing this minute is dated 8 November 1907 and drawn thus:

"It is hereby ordered that the Natives whose names are set out in the first column of the Schedule indorsed hereon, are and are hereby declared to be together with their direct descendents the owner of an occupation or residential right in the parcel of land to be called or known as Allotment 11 Arerenga, Arorangi containing 777 Ars more or less, and delineated in the plan numbered 526 subject to payment to Ati owner of the said land and his successors of the sum of one shilling on the first day of January in each year. And it is further declared that upon the death of Tautu and Teariki and failure of their direct descendents the said land shall revert to the said Ati or his successors."

Tautu died prior to 1914 without issue; Teariki Tautu died on 9 July 1917 also without issue. Tautu was succeeded by Teaukura Roi on February 1945. How this came about, for he was not a direct descendant but came down from an earlier progenitor along another branch, is unknown, though it is probable that a succession order was made in his favour by reason of the consent of the owners of the land, the Ati family. Te Ariki Tautu was succeeded by the Respondent Mennie Roi, now Mennie Heather. She claimed in these proceedings to succeed to the interest of her brother Teaukura Roi as well. Mauariki Roiauri the present appellant for whom Mr Ingram appears also claimed to succeed Teaukura Roi on behalf of herself and all her brothers and sisters - not as a descendant of Teaukura Roi, but as succeeding to Tautu and Teariki Tautu, the original holders of the occupation right, through the line to which we have already referred, which commences in another Tautu who was an ancestor of the two people in whom the occupation right was first vested by the Court.

The repetition of the same or like names makes a mere recital of genealogical descent difficult to follow. It may help if we include here a tree prepared for the applellant, which, of course, covers her sister the respondent too.

The action came before Dillon J in the High Court (Land Division) in December 1984. In a reserved judgment delivered on 8 March last he made a succession order in favour of Mennie Heather solely and dismissed the claim of Mauariki Roi. From that decision the latter appealed to this Court.

The case upon which Mr Ingram builds the claim for Mauariki Roiauri in this Court was presented in an interesting and capable way. He claimed that the Native Custom of Akonoanga Oire, as correctly understood, did not, and does not, restrict succession to direct descendants but in the absence of such direct issue, passes the succession to "near relatives"; and that being so Tautu should be succeeded in respect of his interest in this land by Mauariki Roiauri and her brothers and sisters, including of course the present respondent, Mennie Heather. What Mr Ingram says, in essence, is that the Order as issued restricting succession to direct descendants incorrectly applied the custom then existing, and he supports that by referring to certain language appearing in records of the judgments of earlier Judges which we have quoted earlier. Consequently, Mr Ingram seeks various orders cancelling or rectifying the occupation right as issued by the Court and declaring the right to succeed to the interest now in dispute to lie with his client and her brothers and sisters as "near relatives".

We are prepared to assume without deciding, for there may be some doubt about the matter, that Mr Ingram's clients are near relatives within the language used in the judgments. It is true, as he says, that the phrase "near relatives" has been from time to time included as well as "direct descendants", in descriptive passages of some judgments relating to descent and succession but in other sections of those same judgments the term "issue", or similar terms, connoting only direct descent, are also employed in prescribing successors.

We have carefully read these judgments and the historical writings of recognized standing which Mr Ingram helpfully made available to us. We need not list these last. But we have found no persistent and overall selection of words defining the course of descent of occupation rights which we must treat as exclusive. Often, indeed most often, the phrase is simply "direct descendants" or "issue". Sometimes it is "direct descendants or near issue". In others again, one reads an inclusion of near relatives but only subject to the consent of the family of the grantor.

This exercise has shown us how unwise it would be to dogmatise in favour of the custom of Akonoanga Oire being implemented exclusively in compliance with a particular or standard set of words over different times and places. Its evolution, though generally consistent, seems, as one would expect, to have produced variations in its application. We have also noted evidence of this in the wording of the printed forms of Court orders, as we shall now show.

The particular printed form of order in this case, as will have been observed, expressly restricts the succession to "direct descendants". The same form was used for a number of years. We were told that 60 or more such orders were sealed in respect of Arerenga land alone, and probably a great number more for other areas of Rarotonga. But by 1949, in some cases at least, the form was changed to read: "The right of occupation shall be for so long as the occupier or his descendants shall use the land for the purpose specified and shall comply with the other conditions contained here". And later in the same document: "on the death of the occupier, her occupation right shall pass to her children and registered adopted children who shall decide subject to the approval of the Native Land Court, who of those children or adopted children shall occupy. If the occupier leaves no children or registered adopted children, then the successors appointed by the Native Land Court shall decide who shall occupy." (MB.18/102). This seems to extend the class. But in 1972 (MB.31/231) the form returns to the earlier wording, "for so long as (the occupier) or his direct descendants or any of them shall occupy". Finally we mention an order made in 1979, (MB.42/49) where the right is again for the benefit of the occupier "and her direct descendants".

Against this history of varying language in written judgments and formal orders we would certainly not be justified in changing in an important respect, even if we could, the terms of an order which has stood for over seventy years. Especially is that so when we know that a large number of existing rights were issued in similar or like words by the Land Court over those years and are the bases of so many occupations today.

Central to Dillon J's decision in this case is his acceptance that he was controlled by the limitation embodied in the currently existing occupation right, "direct descendants". His judgment records that Mr Ingram sought the cancellation of some earlier succession orders in accordance with his argument relating to 'akonoanga oire'. Dillon J refused, saying that if that was to be pressed a separate formal application should be filed. He did not discuss s.390 (A) of the Cook Islands Act 1915, which we shall shortly.

We think that Dillon J was correct in refusing to cancel previous succession orders which had been made in pursuance of the occupation right, so long as that right remains as originally granted. Trying to secure the cancellation or variation of that right places Mr Ingram in some difficulty as his argument before us demonstrated. He was plainly unable to rely on the extensive discretionary powers to amend, vary or cancel an order for mistake, error or omission whether in fact or law, vested in the Chief Justice, or other appropriate Judge, by s.390(A) of the Cook Islands Act. That is so because that section expressly does not apply to an order made on investigation of title, as the order granting the occupation right in this case was. (Subs 10). Furthermore, a refusal to exercise the powers given by the section to cancel etc is not appealable, (subs 2). Mr Ingram was therefore forced ultimately to urge on us the powers to change conferred by the "slip" rule provisions of s.44 of the Judicature Act. But what he sought was a very substantial amendment, far beyond any correction empowered by a slip rule of procedure. The original order was drawn deliberately in the form it was, following the well-established practice of the Court at the time. There was no careless or accidental slip.

For these reasons we must reject Mr Ingram's argument in favour of the cancellation of earlier succession orders and the making of one now in favour of his client. It is for him to decide in the light of what is said here whether he will file formal applications, as Dillon J suggested might be possible, about which we express no opinion.

There are two further matters arising out of Mr Ingram's argument which we mention, lest it be thought we have overlooked them. The first is his submission that the "order" covered by s. 390(A) (10) is what the Judge says in the course of delivering judgment, and not the later formal sealed document. We cannot accept that. The order for the purpose of the subsection is the formal document sealed and issued by the Court.

The second matter is the submission that when the line of direct descent runs out, as it did in this instance, the Land Court instead of granting succession to someone outside the line pursuant to the wishes of the owning family (as appears to have occurred in the grant of succession to Teaukura Roi) the Occupation Right should be treated as expired, and if the circumstances warrant it, a fresh right issue. That sounds logical on the face of it; but the practice of the Court has been rather different. In this case, however, it seems most unlikely that that procedure would have brought a different result in view of the attitude of the Ati family.

For these various reasons we take the view that it has not been shown that Dillon J was wrong and that being so, the appeal will be dismissed. The appellant will pay the respondent the sum of $500 for costs, plus disbursements as fixed by the Registrar.

Solicitors:
V.A.K.T. Ingram, Rarotonga, for appellant
Clarkes, Rarotonga, for respondent