Tou v Toeta [1995] CKCA 3; CA 04.1994 (30 November 1995)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)
C.A. 4/94

IN THE MATTER
of Section 409(f) of the Cook Islands Act 1915

AND

IN THE MATTER
of the Mataiapo Title of Kaputa

AND

IN THE MATTER
of an appeal against the decision of the High Court
dated 26 November 1994

BETWEEN

TUKURA UTI TOU
(nee Mokotua)
Appellant

AND

TUAKANA TOETA
Respondent

Coram: Sir Duncan McMullin (Presiding)
Hillyer J
McHugh J

Counsel: B.H. Giles QC for the Appellants
T.P. Browne for the Respondent

Hearing: 8 and 9 September 1995

DECISION OF COURT OF APPEAL - DELIVERED BY MCHUGH J

1. Introduction

The circumstances and background of this appeal involve two families, one named "Kaputa" and the other named "Uri". Certain members of the Uri family claim they are also blood related to the Kaputa family and that this bloodlink entitles them to rights of succession to certain Kaputa lands and also to take part in the selection of the "mataiapo" or "head" of the Kaputa family. The mataiapo is an Under Chief responsible to the tribal Ariki and has full authority to rule his Ui Rangatira Kiato and his family. In some instances the Ariki may elect a Mataiapo for some good work the Mataiapo may have done for the Ariki or tribe or to assist in the tribal functions. In some cases Mataiapo titles came from ancestral succession. It is an important title.

In these proceedings there were two conflicting applications before the lower Court. They were lodged by Tukura Uti Tou (the appellant) and Tuakana Toeta (the respondent) respectively and each sought an order pursuant to Section 409(f) of the Cook Islands Act 1915 to determine that each, exclusive of the other, was the rightful holder of the title "Kaputa Mataiapo". The applications were dealt with together at two hearings on 8 July and 14 December 1993. The parties made final submissions in writing. There was some delay in this procedure and apparently it was not until 20 September 1994 that final submissions were completed. The Court in a written decision delivered on 26 November 1994 held that Tuakana Toeta (the Respondent) had the right to hold office as mataiapo and rejected Tukura Uti Tou who lodged the present appeal.

The lower Court in these proceedings therefore was determining the question of succession to the Kaputa Mataiapo title and not the question of succession to Kaputa lands. The latter question had already been before the Land Court and in 1968 and 1976 that Court heard a series of applications which were again disputed matters involving the same family groups. These past decisions were revisited by the lower Court as there was a need for the Court in answering the Mataiapo title claim to review the evidence given on blood and adoption relationships which was relevant to the present case. It will also be necessary for this Appellate Court to look at this historical record as both the appellant and respondent base their respective cases almost wholly on the genealogical evidence in the earlier land succession cases. This will be done shortly.

It is also to be noted, of course, that the appeal before this Court is not a rehearing of the application under Section 409(f). The Court of Appeal is required to determine whether the lower Court Judge was right or wrong in fact and in law in reaching his decision. It is not proposed to review here the principles governing the exercise of judicial discretion by the lower Court. These are well established. On the question of the admission of evidence the Appellate Court, unless it allows new evidence to be adduced, relies upon and is restricted to the evidence before the lower Court. There was an application made to this Appellate Court by counsel for the appellant to adduce new evidence but this application was withdrawn at the commencement of proceedings. As a result of conference and agreement between counsel for both parties a supplementary record (referred to in this appeal as SR) was filed by way of addition to the compiled casebook record of the lower Court proceedings and evidence (referred to herein as CB).

It does not need to be emphasised that in considering matters going back to the turn of the century the views of witnesses nearer in time to the events at issue are likely to be more accurate than those expressed 10, 30, 50 or 80 years later. In this inquiry relevant evidence going to genealogical matters important to family relationships came before the Court in 1906, 1917, 1944, 1968, 1976 and 1993. Just as the evidence of witnesses in the earlier cases may be more accurate it is also fair to say that the views and determinations of the respective judges hearing these cases may similarly be more accurate than judges dealing with the same facts many years later. The judge not only has the witness before the Court but also has generally a wider knowledge of genealogies resulting from the multitude of succession cases then before the Court and is consequently better advantaged in determining succession rights. During this appeal counsel for the appellant questioned whether marginal reference in minute books and made by the judge involved, carried any inference that there had been detailed study and comparative analysis of earlier genealogies. The inference that can clearly be drawn is that the hearing Judge by noting the earlier cases, was in fact aware of previous genealogical evidence either in support of or counter to that being presented later. As will be shown there are always some inconsistencies which appear in succession evidence but the judge hearing these cases and aware of previous evidence is generally able to work out the entitlement. As a further corollary there is a reluctance of judges to interfere with the findings and determination of an earlier judge who had before the Court witnesses with intimate knowledge of events, unless of course there was manifest error. These observations are made by this Court as a similar situation obtains in these proceedings. Having said that however, this Court is mindful of the nature of the present proceedings and of the submission properly put by counsel for the appellant that this is the first time an application to determine Kaputa Mataiapo title has been before the Court; that such an application does not have issues that are identical with the previous succession applications and caution must be exercised in reliance upon evidence presented and decisions made by those earlier Courts. As was also submitted by counsel for the appellant an important test to be applied by a Court dealing with a claim to title is whether the candidate was selected by those eligible to make that decision. Although no argument appears to have been traversed in the lower Court as to the customary rule determining what body has the power to select a mataiapo it seems to be assumed by both parties that each of them has been selected by family members with blood relationship to Kaputa Kaena. In other words, the descendants of Kaputa Kaena are entitled to select the Mataiapo. The point to be made here, by way of further support for the appellants' request to view succession applications cautiously, is that there may well be cases in which descendants of the deceased ancestor giving blood rights are not actually owners in the land itself but by virtue of blood right are entitled to take part in electing the new mataiapo.

An issue before the lower Court was to determine as part of the election process not only whether the candidate had entitlement rights but also whether the candidate was elected by the proper body. This question will be examined a little later herein.

2. Grounds of Appeal

The appellant put forward the following arguments:

1. That the Kaputa Mataiapo title could be held only by a person connected by bloodline. The appellant had bloodlink but the respondent did not.

2. Neither the lower Court nor any earlier Court has carried out a thorough investigation of the right to hold a title pursuant to Section 409(f) of the Cook Islands Act 1915 but relied on evidence given in previous land succession cases in 1968 and 1976.

3. The lower Court was wrong in holding that extensive evidence was given to the Court in 1976 dealing with the same issues before the Court in 1993/94.

4. The lower Court avoided the issue of who were the family for the purposes of re-electing Kaputa Mataiapo.

5. The lower Court erred in finding the respondent's father (Toeta Ngatae) was the illegitimate son of Kaputa Metua.

6. The lower Court was wrong in holding the respondent was properly invested with the title and has held it unchallenged since 1979.

7. The earlier Courts in 1968 and 1976 did not have before them the Kumu genealogy (MB 8/224) (CB 18) and relied upon the 1917 genealogy.

8. The doctrine of res judicata does not apply in these proceedings.

9. There are inconsistencies in genealogies before the Court which require further research and evidence.

3. Respondent's case

The respondent claims:

1. There was no evidence that the Kaputa title can only be held by a person connected by bloodline. Adoption is sufficient to establish a right to title.

2. The appellant has no blood connection to Kaputa Kaena lands.

3. The respondent accepts the lower Court erred in finding that Toeta was the natural son of Kaputa but says such error is not crucial to the lower Court's decision.

4. The lower Court did not err in finding the respondent had held the title unchallenged or in placing undue weight on the 1968 and 1976 evidence. The Court was bound to take these decisions into account as they deal with the same issues before the present Court.

5. The genealogy supplied by the appellant is unsubstantiated by Court records. Kumu's genealogy in 1944 was before the Court in 1968.

6. The respondent was properly invested with the title but investiture is not a prerequisite to election.

4. Examination of land title

We propose at this point to look at the historical Court records pertaining to the two blocks of land over which the 1968 and 1976 succession disputes arose.

The two blocks of land involved are Ngarepo 83G and Matarangi 83H. Both blocks are in the Aroa Tapere of the Arorangi District. Looking first at Ngarepo 83G the record shows in respect of the Kaputa interests the following:

1. Ngarepo 83G following investigation of title on 25 October 1906 was vested in two persons:

(i) Tinomana

(ii) Kaputa

2. On 25 January 1917 the half interest of Kaputa who died on 4 October 1913 was vested in two adopted children of Kaputa viz.:

(i) Toeta m 14

(ii) Kaputa m 16

3. On 10 September 1968 following the death of Kaputa his interest was succeeded by his adoptive brother Toeta.

4. Toeta died on 25 November 1977 and on 22 February 1978 Toeta's interest was succeeded to by:

(i) Tuvaine Toeta Ngatae fa 1/2

(ii) Tuakana Toeta Ngatai ma 1/2

Tuakana Toeta is the respondent in the present appeal.

Passing now to the second block Matarangi 83H, it is recorded:

1. On 25 October 1906 following investigation of title the land was vested in:

(i) Kaputa ma

(ii) Toeta, m 2 years

(iii) Ema fa

As will be seen later Toeta and Ema were adopted children of Kaputa.

2. On 10 September 1968 Ema’s interest was vested equally in her 7 children.

3. On 10 September 1968 Kaputa’s interest was succeeded by Toeta.

4. On 10 November 1969 an order was made determining the relative interest of the owners and Toeta was determined as owning 4 shares and Ema’s seven children as each having a 3/7 share or a total of 3 shares between them.

5. Following Toeta’s death on 25 November 1977 his interest was divided equally between:

(i) Tuvaine Toeta Ngatae f.a.

(ii) Tuakana Toeta Ngatae m.a. (the respondent)

6. By succession order dated 25 May 1987 the 3/7th interest of Tuainekore Solomona (fa) one of Ema's children who succeeded in (2) above was vested in her 7 children.

As the above title record shows the two adopted sons Toeta and Kaputa succeeded Kaputa's interest in the Ngarepo block. Ema was not included. In order to follow the genealogical argument which shortly follows we will refer to Kaputa being the adoptive father of Ema and Kaputa as Kaputa Metua and to the three adopted children as Ema Peka, Toeta Ngatae and Kaputa Aniterea. By way of further comment on the above title records it is to be noted in respect of the Matarangi block that following investigation in 1906 Kaputa Metua retained an interest for himself and put only Ema and Toeta into the land excluding Kaputa Aniterea.

5. Genealogical arguments of the parties

5.1 Genealogical tables

In order to follow the submissions of the two parties to this appeal it is necessary to look at the respective tables presented to this Appellate Court.

The first table "Table A" is the appellant’s genealogy as presented to the lower Court and to this Appellate Court.

The second table "Table B" was prepared by counsel for the respondent at the Court's request during the hearing of this appeal.

A further five tables reflecting evidence given to the Court in 1906, 1917, 1994 and 1968 will be set out later. These latter tables will then be compared with the genealogies presented by the appellant and respondent.

TABLE A
APPELLANT’S GENEALOGY
Ngati Kaputa and Ngati Uri Genealogies

Kaena Taupea (m)

Matata Kaena (m)
= Te Kura Taukiata

Maraka Uri
= Te Upoko
Mataina (f)
= Terei

Te Ariki Apaiau = Konini Uri Uri Rata Uri Varokura
(also known as = Itiao Raututi = Te Kura = Te Paeru
Kaputa Kaena)

Descendants Te Upoko
Aniterea = 1^st husband = 2^nd husband

Te Mataina (f) Kaputa (Metua)
= Maeukite Rangi (Kaputa (Iti)

Ngatae Kumu
= Ngakiara

Rangi (f) Irai (f) Tuua (m) Mokotua (m) Te Paeru Toeta plus 7 other brothers & sisters

Tu Kura (f) Tuakana (m)
The Appellant The Respondent

LEGEND: Kaputa Bloodline
Adoption Lines

TABLE B
RESPONDENT’S GENEALOGY

Takaia

Kaputa Kaena = Upoko = Uri Varokura

Itiao Raututu = Konini = Te Ariki Uri Uri Rata Uri Varokura
= Te Kura = Tepaeru

Rure 1^st Husband = Te Upoko = Toka
2^nd husband

Aniterea Kaputa Te Mataina
= Maeu ki te Rangi Kumu

Ngatae
= Ngakiara

Kaputa

Toeta and others

Rangi Irai Tuua Mokotua

Tukura and others

LEGEND: Adoption lines

5.2 The appellant's genealogical claim - Table A

As will be seen from both genealogies Kaputa Metua is shown as being one of two children of Konini Uri from her marriage to Te Ariki Uri. The second child was Te Mataina. The appellant, Tukura, descends from Te Mataina and claims that her great grandfather Te Ariki Uri was a person named Ariki Apaiau or.Kaputa Kaena who was not of the Uri family but of the Kaena family. The appellant therefore asserts that the marriage between Te Ariki Apaiau aka Kaputa Kaena and Konini gave the necessary bloodlink to Kaena lands of which Ngarepo 83G and Matarangi 83H form part. In reliance on this bloodlink Te Mataina's descendants in 1968 sought to be included in Kaena lands by succession to Kaputa Metua and to displace interests sought or already awarded to the adopted children of Kaputa Metua. In further reliance on this bloodlink and in these proceedings the appellant as a natural descendant of Te Mataina claims eligibility for her election and investiture as Kaputa Mataiapo. The appellant further claims that Toeta, the adoptive son of Kaputa Metua, had no bloodlink with the Kaputa line and was therefore not qualified to hold the Mataiapo title nor was Toeta's son Tuakana Toeta and the respondent in these proceedings eligible to hold the Mataiapo title. It is to be noted here that Toeta in fact held the Mataiapo title following his father's death in 1913 until he, Toeta, died in 1977. On 14 June 1979 Toeta’s son, Tuakana the respondent, was invested as Kaputa Mataiapo following a meeting of the Kaputa family and has held the title since then.

5.3 The respondents genealogical claim - Table B

The respondent claims that Konini's husband was in fact Te Ariki Uri of the Uri family and not Te Ariki Apaiau or Kaputa Kaena. The respondent claims further that the linkage between the Kaputa and Uri families did not stem from the marriage between Konini and Te Ariki but in a prior adoption of Kaputa Metua by Kaputa Kaena. The respondent also argues that as a result of this adoption Kaputa Metua only was linked to Kaputa lands to the exclusion of Kaputa Metua’s sister Te Mataina, who remained a member of the Uri family. The respondent says further that the adoption of Toeta by Kaputa Metua was recognised and acknowledged by Kaputa Metua in placing Toeta then aged 2 years into Matarangi 83H title shortly after the adoption.

5.4 Essential differences between the two parties

The appellant relies on the marriage of Te Ariki Apaiau also known as Te Ariki Kaena with Konini Uri and which she claims produced two children, Kaputa Metua and Te Mataina, as providing the bloodlink to Kaputa Kaena lands and the mataiapo title.

The respondent on the other hand claims that the person named Te Ariki who married Konini was neither Te Ariki Apaiau nor Kaputa Kaena and was in fact Te Ariki Uri and of the Uri family, not the Kaena family.

The respondent says further that Kaputa, the son of Konini and Te Ariki Uri, was adopted out of the Uri family and into the Kaena family by Kaputa Kaena.

6 The 1968 disputed land successions and evidence before the Court

6.1 Introductory comment

What now follows is an examination of the evidence placed before the Court in 1968. We have considered it necessary to go into this in some detail for this reason. Counsel for the appellant has argued that the lower Court judge did not carry out a thorough investigation of the genealogical evidence but relied on the 1968 evidence and more particularly on the "extensive evidence given to the Court in 1976". It is true the lower Court did not set out in detail all the matters canvassed before the Court in 1968 but the Court did peruse all the Minute Book references "in an effort to comprehend the complex genealogy" (CB 82). It is also true that the lower Court erred in stating that on 2 November 1976 Judge MacCauley heard extensive evidence when, in fact as the record discloses, no evidence was adduced and the Court dealt with the application before it on submission only. However the learned judge in 1976 referred to the 1968 evidence and decided that the 1968 Court had found there was no error as the customary adoption was known to all parties and further that "the Court was well aware of the genealogical background" (CB 77/78). Counsel for the appellant urged this Court there was a need for the Appellate Court to be comfortable about making its own findings sufficient to sustain the judgment and to reach a view there was "absolutely no doubt whatever about the various genealogies and evidence offered".

For the reasons set out above, and also bearing in mind counsel for the appellants' further submission that these present proceedings, as a title inquiry under Section 409(f), differ from land succession cases, we propose to review the evidence placed before the Court in 1968. The appellant is entitled to that review. Before doing so it is important to pose the two questions this evidence must answer not only to justify the 1968 findings but to determine whether that evidence is relevant to and decisive of the right to hold a mataiapo title. The questions we must now keep in mind are these:

1. Does the 1968 evidence prove there was an adoption of Kaputa Metua by Kaputa Kaena?

2. Was there a marriage between Kaputa Kaena and Konini and did that marriage produce two children Kaputa Metua and Te Mataina?

6.2 The 1968 inquiry before Judge Morgan

It was not until 1968 that questions were raised as to the rights of succession to Kaena lands. Toeta applied to the Court to succeed his adopted brother Kaputa Aniterea who had died in 1950 without issue. As we have seen both Toeta and Kaputa were equal shareholders in Ngarepo 83G following succession to their adoptive father Kaputa Metua in 1917. Toeta's application was opposed by Irai Mataina who claimed rights through her mother Mataina, a sister of Kaputa Metua. A witness, Utia Tipokoroa, explained to the Court that Kaputa Metua had been adopted by Kaputa Kaena and the land in question came from Kaputa Kaena down to Kaputa Metua by virtue of the adoption and not by any blood right. This explanation was apparently accepted by Irai and the Court made an order in favour of Toeta Ngatae (CB 64). A little later in the morning of the same day, i.e. 10 September 1968, Toeta Ngatae prosecuted a second application to succeed his adoptive father's interest in Matarangi Section 83H as the surviving adopted child. This was opposed by Te Kura Mokotua (the appellant) and also by Tutai Te Eu. The hearing was adjourned to the afternoon sitting. Utia Tipokoroa again gave evidence and said (CB 66):

"This land is from Kaena and Kaputa was one of Kaena's Komonas. Manawa was the other. It has been told to me that they were younger brothers of Kaena Kaputa a Kaena (m) = Konini a Uri.

No issue but adopted Kaputa of Ngati Uri. Kaputa was not the son of Konini (l6/161) but was related. He was only the adopted son of Konini. He was also related to her by blood but I cannot trace.

Kaputa, the adopted child married Peka of Mangaia. They had no issue but Peka had a child before the marriage named Ema (p262). Kaputa and his wife Peka adopted Toeta but did not register him. Toeta and Kaputa were related on the "Uri" side. Kaputa and Peka also adopted Kaputa, the son of Aniterea, also of Ngati Uri.

Toeta is Kaena's komono today in place of Kaputa and I believe the correct thing is for Toeta to succeed. He already has part of Kaputa’s share. Ema has another part. Toeta should get the rest. I am the Kaena Mataiapo. The people who objected this morning viz. Tutai Te Ehu and Te Kura Mokotua are not Ngati Kaena. They have no right to this share and no right to object."

The minute book records that neither Tutai Te Ehu nor Te Kura Mokotua had any questions to ask. Indeed, Te Kura's Aunt, Irai Maeuterangi, who had accepted the explanation of the genealogy in the earlier application, is recorded as saying this (CB 67):

"Kaputa got into this land because Kaena wanted a child so he adopted Kaputa from the Uri family. Kaputa was a son of Kaena's wife, Konini but not a son of Kaena. Kaena and Konini had no children so Kaena adopted his wife's child. The land, Matarangi, comes from Kaena. This land should go back to Kaena."

At this point Te Kura Mokotua said (CB 67)

"I do not set up a claim".

The Court called for objectors challenging Toeta’s claim. There were none and the Court minuted:

"By agreement. Order in favour of Toeta Ngatae m.a".

We have set out this minute in full because it seems to comprise the bulk of the genealogical evidence on which the Court in 1968 (presided over by Judge Morgan) reached its decision although the Court also referred to earlier evidence in 1906 (MB 3/124 - 5 referred to in CB 66); in 1917 (MB 8/225 referred to in CB 65); and in 1944 (MB 16/161 referred in CB 66 and SR10 (reverse)) by notation in the minute book. The two genealogies presented by the two witnesses above show slight inconsistencies in that Utia Tipokoroa claimed Kaputa Metua was not Konini's child but related whereas Irai Maeuterangi asserts Kaputa Metua was in fact a child of Konini and adopted by Kaputa Metua

We set these tables out as follows:

TABLE C
UTIA TIPOKOROA GENEALOGY (CB 66)

Kaputa Kaena = Konini

No issue

Adopted Kaputa = Peka

No issue

Adopted

Ema Kaputa Toeta

TABLE D
IRAI MAEUTERANGI GENEALOGY (CB 67)

Kaputa Karena = Konini = ? (husband not named)

No issue Kaputa (child of Konini only

It is to be noted in both cases a marriage is acknowledged between Kaputa Kaena and Konini but no issue came from that union. This genealogical evidence compared against two genealogies of the appellant (Table A) and respondent (Table B) show these differences. Comparing first with the appellant's (Table A) genealogy we note:

1. The marriage between Kaputa Kaena and Konini in Table A shows Kaputa Kaena as Te Ariki Apaiau but not so in Tables C and D.

2. Table A shows Te Mataina and Kaputa Metua as the natural children of Kaputa Kaena and Konini but not so in tables C and D.

3. Table A does not show Ema as an adopted child of Kaputa Metua. Passing to compare Table B (respondent's genealogy) with Tables C, and D, we note

1. In Table B Kaputa Kaena is shown as having married Upoko and not Konini.

2. Table B shows Konini as having married Te Ariki Uri with Kaputa Metua and Te Mataina as the issue of that marriage.

3. Table B does not show Ema as an adopted child of Kaputa Metua.

6.3 The pre-1968 evidence

Before relating and applying the evidence in Tables C and D to the Court's decision in 1968 we need to look at pre-1968 genealogical evidence which was also before the Court in 1968. The first reference is contained in Minute Book 3/124 dated 26 November 1906 a copy of which minute was handed to this Appellate Court by counsel for the respondent. The minute says:

"Kaputa Metua = Moerosenua and the brothers asked for their sister. Kaputa refused and Kaputa came from Aroa and lived at Araitetonga. His wife Moera died there he then married a daughter of Takaia and took her on to his land Aroa. She had a child called also Kaputa the father died. Then Uri came for this woman and took her away. She had a son Uri and her next child was Konini. Kaputa became a tuakana of Uri and Konini his sister. Kaputa had no children so he took his sisters child - this man - and Kaputa left his land to this man. He said nothing about Kaena’s lands."

The genealogy resulting from this evidence would seem to be as follows. We shall call this Table E–Aniterea’s genealogy.

TABLE E
ANITEREA’S GENEALOGY
(Minute Book 3/124) 1906

Kaputa Metua = Moeraenua
(1^st marriage)

No issue

= Upoko
(2^nd marriage)

Kaputa Upoko = Uri

No issue Uri Konini

Adopts Child
(Kaputa)

Although Konini’s child is not named it could be inferred the adopted child is Kaputa Konini (see 3/126) as the minute is directed to a claim in respect of Kaputa land.

The second reference is to the evidence given by Itiao in 1917 (MB 8/224 CB 18). Itaio commences his very short evidence by giving this genealogy.

TABLE F
ITIAO’S GENEALOGY
15 JANUARY 1917

Takaia

Kaputa Metua = *Upoko

Kaputa Toeta
(no issue) (no issue)

Keakea = *Upoko = Uri Varokura

Keakea

Uri (2^nd Husband) Konini
Itiao = Te Ariki
Upoko

Ngatae Arekura (Itiao) Kaputa
(no issue)

Toeta Kaputa
(adopted by Kaputa) (Adopted by Kaputa)

As we will see shortly the respondent claims this genealogy establishes that Kaputa Metua married Upoko and they adopted Kaputa Aniterea and Toeta Ngatae. Such an assertion seems to be inconsistent with the respondent’s own genealogy – Table A, which shows Kaputa Kaena adopting Kaputa Konini who in turn adopted Kaputa Aniterea and Toeta Ngatae.

We move now to look at the 1944 evidence. This was again genealogical evidence presented to the Court by Kumu and as emphasised by counsel for the respondent related to the Uri family. The genealogy is set out in Minute Book 16/161-163 March 1944 and recorded in the appeal (CB 19). The following Table G is an abridged copy and shows Konini’s marriages and issue.

This genealogy given by Kumu confirms:

1 Kaputa Metua or Konini adopts Kaputa Aniterea and Toeta Ngatae.

2. Konini marries twice.

3. Konini had 2 children from Te Ariki.

This genealogy differs from the. 1917 Table F in that the Kaputa who adopts here is the son of Konini's marriage with Te Ariki.

Kurnu supplied a second genealogy (SR10 reverse side) which confirms Table G but shows Konini's husband as Te Ariki Uri. On the same day as Kumu gave evidence another witness Nainangaro gave his genealogy (CB 20) and listed Konini as having three husbands:

1. Te O Karu

2. Te Ariki Uri

3. Itiao

Further confirmation of Konini's three marriages also appears in another Uri genealogy given to the Court in 1944 and shown on the reverse of page 23 of the supplementary evidence. This was the evidence of Ngaei who also refers to Konini's first marriage to Te-O-Karu. Both Nainangaro and Ngaei show Konini's second marriage being to Te Ariki Uri (emphasis added).

It was alleged by counsel for the appellant in his grounds of appeal supra that Kumu’s genealogy (Table G) was not before the Court in 1968 or 1976. That allegation is certainly not valid in respect of the 1968 decision of Judge Morgan who refers to it twice by minute entry (see CB 66 and SR10 reverse side).

6.4 Findings to be drawn from evidence before Court in 1968

The evidence either presented or referred to the Court in 1968 is contained in the genealogies Tables C - G inclusive set out supra. In our view this evidence established two important criteria that were necessary for the 1968 Court to make the succession orders it did. These were:

1. That there was an adoption of Kaputa Aniterea, Toeta Ngatae and Ema Peka by Kaputa Metua or Konini.

2. That adoption took place prior to 1906 and was acknowledged by the adoptive father putting two of those children into Keene lands.

3. The adoption up until 1968 was also recognised by others including the appellant's family. That adoption had therefore matured and was acceptable to the Court.

4. That there was also an earlier adoption of Kaputa Metua or Konini by Kaputa Kaena. This adoption had the effect of linking Kaputa Metua who was of the Uri family with the Kaputa Kaena lands. Kaputa Metua was put into Kaena lands by Kaputa Kaena.

5. There was no similar adoption of Kaputa Konini's sister Mataina by Kaputa Kaena. Mataina therefore remained Within the Uri family.

6. There was evidence given by both Utia Tipokoroa (CB 66) and Irai Maeuterangi (CB 67) that Kaputa Kaena, who adopted Konini's child Kaputa, married Konini but there were no children of the marriage.

7. There was evidence that one of the husbands of Konini was Te Ariki Uri.

Before applying the genealogical evidence to answer the two questions posed earlier, it is necessary to look at two other applications which came to the Court in 1968.

On 22 October 1968 applications were filed for rehearing of the two succession orders made by the Court on 10 September 1968 in favour of Toeta Ngatae in respect of the Matarangi Section 83H and the Ngarepo Section 83G block interests held respectively by Kaputa Metua and Kaputa Aniterea. The applicant was Irai Maeuoterangi, a daughter of Te Mataina and the aunt of the appellant. Irai was represented by her son - in - law Uti Tou. Uti was recorded as saying that Kaputa (Metua) who adopted Toeta "was a Kaena man and was sometimes known as Te Ariki Apai (SR10). The Court must have doubted this statement as the judge inserted a reference to three previous minutes at MB 8/224 (CB 62), MB 8/265 (CB67) and MB 16/161 (SR10 and reverse). The minute at MB 8/265 recorded Irai as confirming that Kaputa Kaena adopted Kaputa Metua who was Konini's son and from the Uri family. In its third reference to MB 16/161 the Court was obviously pointing to the Kumu genealogy which showed also that Kaputa Metua was of the Uri family. After being reminded of previous evidence Uti Tou said:

"That is not what she (Irai) told me and that is why I am in Court. I believed what she told me but after hearing her evidence (p265 ante) I have nothing more to say"

The Court therefore rejected Uti's submission and dismissed both applications for rehearing.

This minute is the only reference to Te Ariki being also known as Te Ariki Apai.

6.5 Effect of pre - 1968 evidence

The Court in 1968 was clearly of the view that there had been a double adoption process. The first adoption by Kaputa Kaena of Kaputa Metua established the linkage between the Kaena family and the Uri family. Kaputa Metua subsequently was awarded interests in the two Kaena blocks viz. Ngarepo 83G and Matarangi 93H. Kaputa Metua, in turn, adopted by Maori custom Kaputa Aniterea, Toeta Ngatae and Ema Peka. The adoption was recognised by Kaputa Metua in respect of Toeta and Ema by placing them in Matarangi 83H Block in 1906. The Court in 1968 accepted that the adoption of Toeta had matured. Toeta was granted succession to both his father, Kaputa Metua, and his adoptive brother, Kaputa Aniterea.

6.6 Application of 1968 evidence to the present Section 409(f) application

It is now necessary to apply the 1968 evidence to the present proceedings and to determine its relevance. As stated earlier the appellant relies on the marriage of Kaputa Kaena to Konini and the birth of two children from, that marriage namely Kaputa and Te Mataina to provide a bloodlink to Kaena lands. Before reviewing the 1968 evidence we earlier posed two questions. We repeat those questions as they are crucial in this Mataiapo Title claim.

1. Does the 1968 evidence prove that there was an adoption of Kaputa Metua by Kaputa Kaena?

2. Was there a marriage between Kaputa Kaena and Konini Uri and did that marriage produce two children?

This court finds that there was sufficient evidence before the Court in 1968 to answer both these questions. Indeed it was important to the Court to have evidence on the first questions even though Kaputa Metua was on the title of both Ngapero 83G and Matarangi 83H Blocks. Evidence of the adoption was given in 1906. In 1968 not only was evidence tendered by a Kaena Mataiapo ( CB 66), Utia Tipokoroa, but also supported by evidence from Irai Maeuterangi, the aunt of the appellant. The answer to the first question from analysis of the evidence is in the affirmative. There was an adoption. It is relevant to the present Section 409(f) proceedings because the adoption links Kaputa Metua and his adopted children to the Kaputa lands and to the Mataipo title. We shall shortly look at the bloodline versus adoption issue which is also argued by the appellant.

There appears to be conflicting evidence in the 1917 Itiao genealogy (Table F) which has been interpreted by the respondent as showing the adoption of Kaputa Aniterea and Toeta by Kaputa Metua. The respondent’s genealogical Table B, however, shows a double adoption process. In our view the Itiao genealogy (Table F) was not intended nor presented by witness Itiao as a full genealogy nor was it set out as such. It shows no linkage line between Kaputa Metua who is shown as being married to Upoko and the two adopted children. It does not show all the Uri family successions from Upoko’s marriage to Uri Varokura. It does not show Kohini’s son Kaputa as the adoptive father but it must be noted there is an underlining emphasis under Kaputa’s name. The table could be construed as showing the union between the Kaputa and Uri families which led to the adoption by Kaputa (son of Kohini) of Toeta and Kaputa. As a genealogy therefore it is lacking in detail and no conclusions can be drawn from it.

We consider the other evidence given to the Court in 1968 correctly reflects the events. That evidence is reinforced by the earlier 1906 evidence.

We move to the second question. There was evidence before the Court in 1968 that Kaputa Kaena married Kohini. There was no evidence however that Kaputa Kaena was also Te Ariki Apaiau apart from the confused evidence given to the Court by Uti Tou and referred to earlier. There was certainly no evidence given that the marriage between Kaputa Kaena and Kohini produced issue. To the contrary there is evidence by witnesses (including the appellant’s aunt) that Kaena and Kohini had no children and Kaena adopted Konini's child. The Kumu genealogy (Table G) upon which the appellant relies does not show any marriage between Kaputa Kaena and Konini. As earlier noted there was some evidence that Konini married thrice and not twice. It would not be surprising if Kaputa Kaena lived with or even married Konini because the 1906 evidence shows Kaputa Kaena adopting an older brother relationship (tuakana) with Konini and later adopting Konini's child. The issue of whether there was or was not a marriage is irrelevant to the 1968 succession proceedings and to the present application under Section 409(f). What is relevant however is whether Konini had two children to Kaputa Kaena as this would have established a bloodlink between Kaputa and Uri a material issue in determining rights to the Kaputa mataiapo title.

The evidence before the Court in 1968 does not allow of any construction that Kaputa Kaena begat Kaputa, Metua and Te Mataina. The answer to the second question is that there may have been a union between Kaputa Kaena and Konini but that union produced no issue.

7 Post 1968 proceedings and evidence

7.1 1976 Proceedings

It is now necessary to look at the 1976 and more recent 1993/94 hearings to see if any new evidence was forthcoming. On 8 October 1976 Tua Rangi, a member of the appellant's family applied for succession to Kaputa but at the hearing sought and was given leave to amend the application to one seeking revocation of the succession orders made on 25 January 1917 and 10 September 1968 (SR11). The hearing of the amended application was held on 2 November 1976 (SR12 - 14). Apo Tangatatutai appeared for the applicant. He did not call any witnesses and made very short verbal submissions. The applicant's case was that Toeta was not legally adopted by Kaputa (Metua) and the Court was also in error by not granting succession to the next of kin - the children of Te Mataina. Judge MacCauley gave his decision on 2 November 1976 and found that there was no error as the relationship of customary adoption was known to all parties. The Court also found there was no error made as to persons entitled as the earlier Court was well aware of the genealogical background. The application was summarily dismissed by the Court on the basis the matter "had been well and truly aired before all interested parties". A further rehearing application was lodged by Tu A Rangi but dismissed on 4 April 1978 for want of prosecution. There was therefore no new evidence presented and the Court relied on the 1968 decisions.

7.2 The 1993 application and decision - the subject of this appeal

This was an application made by the appellant on three grounds:

1. That she had been duly elected to hold the title.

2. That she had been properly invested.

3. That she was entitled to the order

This application was opposed by the respondent who in turn filed his application. Two hearings took place on 8 July 1993 and 14 December 1993. Mr Temu Okotai appeared as agent for the appellant. The appellant was not called to give evidence and Temu Okotai, as a witness presented a written submission (CB 12 - 14). The appellant had prepared a genealogy which was put in by Temu Okotai as part of his evidence (CB 15). Mr Okotai also produced the Kumu genealogy of the Uri family (CB 19). The appellant, through her agent, claimed the respondent had no blood right and that the respondent's father Toeta was not legally adopted by Kaputa.

The genealogy put in by the appellant's agent in the lower Court brought to notice for the first time the allegation that Te Ariki Uri was also Te Ariki Apaiall and was also further known as Kaputa Kaena. It was also the first time a claim was being made that Konini and Kaputa Kaena had two natural children. This evidence was not substantiated by any viva voce evidence or by reference to any recorded minute. The position therefore is quite clear. Apart from the genealogy presented by Mr Okotai, there was no additional evidence called to rebut or cast doubt on the evidence before the Court in 1968. That being the case the Court was required to refer to and rely on the earlier evidence and findings in 1968 and 1976.

8 Findings on genealogical evidence

The appellant has shown a remarkable persistence which unfortunately has not been supported by any evidence despite the appellant now having had at least four opportunities to present that evidence to the Court. The courts in 1976 and in 1994 were compelled to rely on the 1968 findings.

On the genealogical ground the appellant has failed to satisfy the lower Court that she had a bloodlink right which excluded the respondent. On the evidence presented to various courts from 1917 until 1994 there can be no finding that Te Mataina was blood related to Kaputa Kaena so as to establish any right to claim the Kaputa Mataiapo title. The lower Court acted correctly in rejecting her claim.

There was evidence before the lower Court that the respondent Tuakana was not only the adopted son of Toeta but was also his natural son. Unfortunately the lower Court judge erred in referring to Toeta as the natural son of Kaputa Metua. That was incorrect and was possibly a slip error by the Court. The error does not have the significance placed on it by counsel for the appellant. It is not material and vital to the findings of the lower Court which were based on the accepted and recognised adoption of Toeta by Kaputa Metua which gave Toeta rights to the Kaputa lands.

9. .Appellant's ground that bloodlink is necessary to establish a claim to the Mataiapo title

It is convenient at this point to deal with the further submission of counsel for the appellant that there was no bloodlink between Kaputa Metua and Toeta to sustain a title claim. No legal submission was presented to support this contention. In the course of delivering a judgment which has been recognised and followed by the Court of Appeal as a hallmark decision on adopted children's rights of succession, Chief Judge Morgan in re Succession to Tuokura Maeua deceased 29 May 1968 MB 28/161 - 162 said this:

"It is also true that adopted children, not of the blood, have held Ariki and other titles and that their descendants have continued to hold those titles and some of the family lands."

Again the Court in re Vakatini Ariki Title claim - Judgment of Dillon J dated 14 April 1980, found there had been adoptions by the original holder of the title and subsequent descendants of the adopted son who had taken over the title were elected to office. The Court refused a claim that the title go back to the original family of Vakatini and that the primogeniture rule should apply regardless of the adoption.

The appellant's argument that bloodlink is essential to claim a title right is therefore rejected.

10 Other grounds of appeal

We now refer to the remaining grounds of appeal.

10.1. Persons entitled to elect mataiapo

It was submitted that the lower Court avoided the issue of who were the family for the purpose of selecting the Kaputa Mataiapo. It is true that the lower Court did not advert in detail to the selection process by which the respondent was elected. The learned judge did however comment that the challenge to the title came some 15 years after the respondent had been invested. The appellant's attack in the lower Court was directed to the point that Te Mataina's descendants were part of the Kaputa family. The respondent gave evidence that his election had been supported by the Kaputa family who were the title holders of Arorangi. The question at issue was who constituted the Kaputa family and the lower Court's finding based on previous decisions was that the respondent by virtue of his father Toeta's adoption had the right and entitlement. The lower Court's finding on the genealogical issue therefore answered this ground of the appellant. The descendants of Te Mataina had neither bloodlink nor adoption status to give them the right to select a Kaputa Mataiapo.

10.2 The respondent was not properly invested with the title

Counsel for the appellant raised this ground and directed it to the failure of the respondent to perform the ceremony of biting the pigs ear because of religious belief. Counsel however properly conceded that nothing turned on investiture since confirmation of the right to hold the title is not determined by that ceremony. The decision of the Land Appellate Court of the Cook Islands in re The Ariki Title of Tinonama 19 May 1976, confirms the principle that investiture is a step in confirming the authority of the Ariki to act but it is not a prerequisite to election.

10.3. The doctrine of res judicata does not apply in these proceedings

This ground was presented as an answer to the respondent's submission that the appellant consented to the succession order by agreement recorded in the 1968 succession case (CB 67). The respondent also referred to the decision of the Land Appellate Court of the Cook Islands in re Ngapoko Enua Deceased Appeal No 213 1940 in which it was held that an order made by consent, freely given, was binding on the parties thereto. The respondent also argued therefore that the Court in 1968 and 1976 had ruled on the same issues as dealt with in the present proceedings. The appellant submits that the succession cases in 1968 did not involve the same parties the same issues, the same evidence and could not be accepted as probative in a title inquiry. The present application was brought under Section 409(f) and the inquiry made by the Court does differ from the earlier succession cases in that the Court in a title inquiry looks at such circumstance as the mode of election and investiture. For this reason there is some strength in the argument that decisions made in earlier succession cases are not applicable to a Section 409(f) inquiry. Res judicata and the principle enunciated in re Ngapoko Enua may not be strictly applicable in this Section 409(f) proceeding but nevertheless there are also strong and relevant circumstances and genealogical evidence which are pertinent to both these succession and title investigations. For example the appellant actually appeared before the Court in 1968 and is minuted as having agreed to the succession order. The evidence as to adoption and family relationships is a relevant factor in both land successions and title claims. The respondent is entitled to rely on this evidence which becomes increasingly important because it was presented to a Court nearer in time to the events and with more intimate knowledge of the facts. Whilst therefore this appellate tribunal might not be prepared to shut out the appellant on a res judicata plea by the respondent nevertheless the evidence given in 1968 is cogent and the lower Court was entitled to rely on that evidence and the Court decisions made in 1968 on that evidence.

10.4 There were inconsistencies in genealogy before the Court which required further research and evidence

This ground has been generally covered earlier in this judgment. There certainly would appear to be some inconsistencies thrown up by the 1917 genealogy (Table F). But even these are not irreconcilable. As indicated earlier that 1917 genealogy was not detailed and in our view was presented to show simply the families from whom the adopted children came. On the other hand there was sufficient evidence available to the 1968 Court to reach a decision. Ample opportunity was given to the appellant to research and present further definitive evidence but that opportunity was not taken. The appellant sought to rely on evidence already tested in Court and on the production of a new genealogy unsupported by evidence, on the crucial issue whether Te Mataina and Kaputa Metua were natural children of Kaputa Kaena. We cannot accept counsel for the appellants argument that further research is needed.

11 Conclusion and finding

This has been, as both the lower Court Judge and counsel for the appellant agreed, a complex and conflicting case. It has been necessary to traverse in some detail the pre-1968 evidence which was adverted to but not set out in the later 1976 and 1994 decisions.

The lower Court, in our view, did not err in placing weight on the 1968 and 1976 decisions and came to the right decision in rejecting the appellant's claim to the Kaputa Mataiapo title and confirming the respondent in that position.

We dismiss the appeal.

The respondent has been put to considerable expense in opposing the appellant.

The Court awards costs of $5000 against the appellant in favour of the respondent.

There is a direction to the Registrar that the sum of $2,000 held by him as security for costs be paid to the respondent in partial satisfaction of this order, such sum of $2,000 to be paid to the trust account of the respondents solicitors, Clarkes, whose receipt shall be a sufficient discharge to the Registrar.

This decision is delivered by the undersigned on behalf of the Court hearing this appeal.

Dated this 30^th day of November 1995

A.G. McHugh, J.

Solicitors For the Respondent: Clarkes, Rarotonga
Agent For the Appellant: Temu Okotai, Rarotonga