Tamarua v Ama [1998] CKCA 1; CA 2 1998 (4 September 1998)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND

C.A 2/98

IN THE MATTER of the land known as TE AU-O-TE TOKOA SECTION 11A, Matavera

AND

IN THE MATTER of an appeal against decisions of the High Court dated 16 January 1997 and 8 June 1998.

BETWEEN

UA TAMARUA of Rarotonga, Retired
Appellant

AND

AKAITI AMA of Rarotonga, Retired
Respondent

Coram: Sir Maurice Casey (Presiding)
Hillyer J
McHugh J

Hearing: 17 July 1998

Counsel: Mrs T P Browne for the Appellant
Mrs Ama appeared for herself as Respondent and was not represented by Counsel.

JUDGMENT OF COURT

Delivered by McHugh J

Solicitors: For the Appellant: Clarkes, Rarotonga

The block of land, which is the centre point in this appeal, is named Te-Au-o-Te Tokoa Section 11A. The land is 3.8 hectares in area and located in the Matavera tapere. For convenience this section shall be referred to in this judgment as "the said land" or as "Tokoa Section 11A". As a further convenience the formal 119 page Record of Proceedings filed with this appeal shall be abbreviated to "RP" followed by the page reference e.g. "RP/10".

On 9 July 1907 the Court investigated claims to ownership of the said land and awarded title to Tamania Nui. The relative entry in Minute Book 3/234 (RP/10) is brief and records:

"Puara - Tapere
517 11A Te Au o to Tokoa

This is claimed for Tamarua Nui. Te Aia - I object- If it crosses the Arametua - It does not. Order in favour of Tamaua Nui"

The Title Register held in the Court records for Tokoa Section 11A (RP/9) commences with the "1907 order. The next entry is dated 28 March 1912 and records the succession order made following the death of Tamarua Nui in 1910.

This minute book entry is also brief (MB 5/166 - see RP/11)

"Teau o Te Tokoa 11A. Matavera - same deceased.

Tioti: This is Mataiapo land. I ask for an order to me

(Deceased expressed same wish)

No objections Order accordingly"

The order of 28 March 1912 is the first of two orders sought to be revoked or amended by the appellant. The second order was made on 6 October 1947 following the death of Tioti Tamarua in 1930. The Title Register records the eight names of Tioti's descendants in their respective shares (RP/9). The Court proceedings are recorded in MB 18/77 (RP/12) and largely comprise the family genealogy. It is relevant to note there were no objections to either of these two successions.

On 30 July 1996 an application was filed in Court by Ua Tamarua seeking revocation under section 450 of the Cook Islands Act 1915 of the two orders made respectively on 28 March 1912 and 6 October 1947. The applicant claimed that both these succession orders were made in error in that the said land was title land belonging to the Mataiapo Title of Tamarua Nui and succession should have gone to the holder of the Mataiapo Title at the time. The applicant submitted the succession order to Tamarua Nui should be amended so that the order read:

"1 Tioti Tamarua m.a. solely

"By virtue of his Title"

and the 1947 succession order to Tioti Tamarua should be revoked by substituting the following:

1. Ua Tamarua m a solely

"By virtue of his Title"

As an alternative ground the applicant claimed that if the Court found the land to be personal family land and not title land then the succession orders were still erroneous as the proper successors to Tamarua Nui should have been his four brothers and sisters and not just one of them namely Tioti. 'The four siblings of Tamarua Nui are:

1.	Tapurau	md
2.	Mata Tiuatua	fd
3.	Konini	fd
4.	George (Tioti)	md

The revocation application came before the Court on 20 September 1996 and on 16 January 1997 the Court (Justice Dillon) gave its judgment (RP/26-28). The Court found that the issue of whether or not the land was title land had been fully argued before the Court previously on 28 June 1966 when an application to revoke the order made on 28 March 1912 was dismissed. Justice Dillon made this statement:

"Now, ninety years later, this Court is again being asked to declare this land title land. There is no justification for making such a declaration and that application is refused."

Having made that decision the lower court indicated that it would like to hear further evidence and submissions on the alternative ground put forward by the applicant. This was the claim that the four siblings of Tamarua Nui should have succeeded equally. The application was then adjourned.

The parties filed comprehensive submissions.

On 8 June 1998 the Court (Justice Dillon) delivered judgment. (RP/105-108) The Court held there was no new evidence adduced to support the application to revoke the two orders made on 28 March 1912 and 6 October 1947. The learned Judge again referred to the 1966 application to revoke which had been dismissed by the Court.

It is clear from the lower Court's judgment that the Court relied on the 1966 finding that:

"Succession went to Tioti Tamarua in accordance with the wishes of the family and of the deceased as expressed in his will. It was only one of a number of lands dealt with in a similar way on that occasion" (RP/108 and see also MB 27/102-3 and RP/13).

In essence therefore the Court in both judgments took the view that the title issue had been determined in 1966 and the Court at that time also acknowledged the existence of a family arrangement and no fresh evidence had been presented for the Court in 1998 to justify revocation.

The appellant has now appealed from the two decisions of the Court. Counsel for the appellant claims the Court was wrong in concluding Tokoa Section 11A was title land and was also wrong in relying upon the 1966 decision and in stating that the title question had been “fully argued". Counsel submitted the Court had not conducted a proper inquiry and that reference to MB 3/234 and 5/166 clearly indicated the said land was title land. Counsel further argued that the lower Court wrongly concluded that the absence of the words "by virtue" of his office or title of Tamarua N'ui was fundamental to the status issue. On the alternative ground counsel contended that if the said land was not title land succession should have gone to the direct descendants. Mrs Browne referred to section 445 of the Cook Islands Act 1915 which barred devises of native land by will and also argued that the lands referred to by the respondent did not support any notion of a family arrangement. In reply the respondent submitted there was evidence on record of a family arrangement attested to by the paramount chief, Pa Ariki. Mrs Ama supported the findings of the Court and strongly stressed that family agreements were regarded as sacred and must be honoured by all concerned.

Findings of the Court

There are two issues raised by this appeal. The first relates to the status of the said land. Is Tokoa Section 11A title land which should pass from the holder of the title upon death to the next holder? The appellant claims to be the current holder of the Mataiapo Title of Tamarua (PP/1 and RP/17) and claims the land. The respondent denies the appellant holds office as Mataiapo and says she is the present holder. That is a matter which may have to be determined in the future. It does not affect present proceedings. The, second question goes to customary right of succession to family land and the issue of who is entitled to ownership rights in the said land.

Dealing firstly with the status of the said land the question which must be answered is whether the lower Court was entitled to rely on the 1966 finding of the Court as determining status. Counsel for the appellant submits the 1966 inquiry was not a full inquiry and should not have been accepted as such by the lower Court in these proceedings and applied as the basis for determining status.

The 1966 decision is important and pivotal in this appeal and needs to be set out in full. Minute Book 27/102 records as follows: (RP/13-14)

"5937 [Te Au o te tokoa Sec 11A Matavera - To revoke

S.O dated 28.3.1912

to interest of Tamarua Nui Dec'd."

Charlie Cowan o.f.o. Tioti Tamarua succeeded to Tamarua Nui because of his title of Tamaruanui. (The order does not say so although evidence suggests it). This is title land of Tamaruanui and his marae is there named Te Arenau. Tioti Tamarua was the "Tamaruanui" when order made. Tioti Tamarua was the correct successor but he should have succeeded as Mataiapo. Akua was appointed Tamaruanui after Tioti but he is away in Tahiti. He should have succeeded Tioti. His brother Ua has been looking after the title. When Ua went to New Zealand his younger brother Teruaroa looked after the title,

Court. This land has not previously been referred to as title land but only as Mataiapo land. The Court cannot place a restriction on the title by succession order. Although Tamaruanui’s marae is said to be on this land it is unlikely it was all title land even if any of it were such (approx 9 ½ acres). Succession went to Tioti Tamarua in accordance with the wishes of the family and of the deceased as expressed in his will. It was only one of a number of lands dealt with in a similar way on that occasion.

"Application dismissed"

The appellant has submitted that this minute cannot be said to represent a full argument on the title issue. Analysis of the minute, and it must be remembered that a judge's minute does not always set out full details of what took place before the Court, shows several significant features. First; the Court did not accept the land was title land even if owned by a Mataiapo. Second; the Court referred to a family settlement supported by a statement in Tamaruanui's will so the Court was aware of such an agreement. Unfortunately the will cannot be located although it was certainly before the Court in 1912 (MB 5/165 and RP/43). Third; the Court stated that the award to Tioti was "one of a number of lands dealt with in a similar way on that occasion".

We shall return to look at this question of a family arrangement shortly.

It seems apparent from the statement made by the Court in that 1966 minute that the Court was aware of the background and had reached a conclusion the land was not title land but family land awarded to Tioti as part of an over all family settlement. On the status issue the Court would have looked at previous minutes and in fact found the land had not previously, i.e prior to 1966, been referred to as title land but only as Mataiapo land. This reference to "Mataiapo" land was made in MB 5/166 (RP/11) and relied upon by the appellant as strong evidence Tokoa Section A was title land. Evidently the Court in 1966 did not agree this was so and dismissed the revocation application before it. The appellant in these proceeding did not produce to the lower Court any fresh evidence not previously available to the Court in 1966 and accordingly dismissed the application. The appellant now seeks to inquire once more into the orders made in 1912 and 1947.

Section 450 of the Cook Islands Act 1915 and upon which the appellant relies provides as follows:

"450. Revocation of succession orders –

A succession order made in error may be at any time revoked by the Land Court but no such revocation shall affect any interest theretofore acquired in good faith and for value by any person claiming through the succession nominated by the order so revoked."

The section specifically gives jurisdiction to the Court "at any time" to determine whether a Court has previously erred. There is no time limitation period within which the application must be brought. The provisions of New Zealand law in relation to succession orders, which do not apply to the Cook Islands, provide a 10 year limitation period in which a succession order may be attacked and possibly quashed or set aside (s77 Te Ture Whenua Maori Act 1993). Section 450/1915 provides no such limitation period so that on the face of it a person alleging a succession order made in 1912 was made in error may bring an action in 1996 or even later to revoke that succession order.

This is a wide jurisdiction and the question in this appeal is whether the lower Court was obliged to consider the application and make a determination notwithstanding that the application was filed in Court 84 years after the 1912 order and 49 years after the 1947 order. The answer to that question lies in the affirmative as the existing law provides no time limitation period. However the relevant and crucial issue at stake in regard to this land is whether the Court in 1996 was obliged to inquire into the issue of status and succession rights when those issues had been before the Court and decided in 1966. The Court decided on 16 January 1997 (RP/26-28) and on 8 June 1998 (RP/105-109) that these two issues had been determined by the Court on 28 June 1966 (RP/13-14) and dismissed the application for revocation.

Before this Court determines whether the lower Court was entitled to rely on the 1966 decision there is a need to look at the second issue as to whether the succession order made on 28 March 1912 was giving effect to a family arrangement or settlement. This question was referred to by the lower Court in its first judgment of 16 January 1997. The Court directed that this matter would be decided at the next Court sitting after the parties had tendered further evidence and submissions.

A brief hearing of the application took place on 27 January 1998. The respondent Mrs Ama filed extensive submissions and supporting papers (RP/30-57). The Court (Justice McHugh) adjourned the hearing after directing the applicant to file submissions in reply and also directed referral of the matter back to Justice Dillon for completion (RP/58). Mrs Browne filed detailed submissions on 6 February 1998 (RP/59-96). Mrs Ama filed a further short submission (RP/97-104) and the file was then sent to Justice Dillon for decision. Although the lower Court had directed these additional submissions in its first decision of 16 January 1997 the Court, in its later judgment, did not review at length the succession issue and relied on the 1966 decision. The Court found that no new evidence had been produced to support the revocation application which was then dismissed.

The respondent in her submissions (RP/33) listed 10 lands which she submitted gave support to her claim there was a family settlement which resulted in the allocation of lands to individual family members. The respective minutes evidencing these successions were produced to the lower Court. The appellant argued that these ten lands did not support a claim there was a family arrangement (RP/62). This Court has read the minutes and although in some cases there is no reference to a settlement nevertheless there is sufficient evidence to indicate three relevant factors.

First: Tamaruanui took an interest in the allocation process and in recording whakapapa and certainly expressed a wish as to the ultimate destination of Tamaruanui lands. This wish may have been expressed during his lifetime and during the early 1900's when investigation of title took place. Second; There is evidence that Tamaruanui’s family were aware of his desires. Third; There is evidence that there was some direction in the will of Tamaruanui although that will appears to have been lost.

This Court does not propose to review each of the lands listed by the respondent but the following minute book statements support the above conclusions.

1. These two extracts are taken from MB 5/373 "The Court has read the 24.6.1912 whakapapa and statements contained in the book of Tamarua Nui (Tamarua Pa Teruaroa dec'd) and compared them with his evidence in other cases and finds that the book and evidence are the same.

The Court therefore considers that the interest of the deceased should go to

...... the descendants of Tamarua Puarangi

...... that is to the line of Tamarua Nui.

That family has decided in accordance with the wish of the deceased that the interest shall go to the son of the present Tamarua Nui i.e to Tuariki m8".

(emphasis added)

2. M.B. 5/165 (RP/43)

28 March 1912

"Deceased (Tamarua Nui) left a will (produced - presumably does not pass any landed interests in Rarotonga) We have settled the succession among ourselves. No objection. Pa Ariki states this is right.

(emphasis added)

3. M,B, 5/167 (RP/39)

28 March 1912

"Order by consent and in terms of wish of deceased to Konini (f)

(emphasis added)

4. M.B. 5/166 (RP/ 95)

28 March 1912

Tioti: It has been arranged that this shall go as deceased (Tamarua Nui) wished to Te Ruaroa.

(emphasis added)

The observations made by the Court in 1966 (RP/14) "that succession went to Tioti in accordance with the wishes of the family and of the deceased as expressed in his will ....." show that the learned judge was cognizant of a family arrangement and was aware of the previous Court minutes such as those referred to above in Minute Book 5. Likewise the learned judge in the Court below not only had evidence of these minutes presented to him but relied also upon the 1966 Court finding that a family arrangement existed. The hearing Judge also stated no fresh evidence sufficient to countermand the 1966 decision had been produced.

The appellant now asks this Court to find that the lower Court erred in its judgments of 16 January 1997 and 8 June 1998. Finding to that effect would also be a rejection of the Court's decision of 8 June 1966.

This Court does not agree with the appellant's submission. As earlier stated herein there is no statutory time limit barring applications to the Court under section 450/1915 but there are good reasons at law for this Court to end litigation which arises from an order made in 1912 - 86 years ago. As time passes opportunity for the presentation of evidence from persons who lived at the time events occurred is diminished. In this case a vital thread in the fabric of evidence is now missing - the will of Tamaruanui. But more importantly there is an intervening circumstance in respect of this succession which distinguishes it from a first time application for revocation. That circumstance is the 1966 decision which was an application for revocation pursuant to section 450 involving the same deceased, the same claim and the same land.

Although the lower Court did not expressly so state in either of its two judgments that it relied on the well established principle of res judicata it is apparent from the Court's reliance on the previous decision in 1966 it had res judicata in mind. The principles guiding the application of this doctrine are set out in Halsbury Fourth Edition Vol 16 and the following extracts therefrom are apt.

"974.The doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all Courts that there be an end of litigation.

975. In order that a defence of res judicata may succeed it is necessary to show not only that the cause of action was the same but also that the plaintiff has had an opportunity of recovering. A plea of res judicata must show either an actual merger or that the same point has been actually decided between the same parties.

976. In all cases where the cause of action is the same and has been determined on the merits ... the plea of res judicata should succeed."

It may be contended that the parties before the Court in 1966 were not the same parties as appeared in 1996 and 1998. That is so but the material issues were the same. The grounds presented were the same and it was the same deceased, the same land and the same set of facts invoked.

Halsbury (ibid para 977) refers to an English case Ashmore v British Coal Corporation (1990) 2 All ER 981 in which it was held that to relitigate a question which in substance has already been determined is an abuse of process. This was a case where a small group of representative cases were selected, heard and failed. Other workers brought action to have the same issues relitigated and the Court held that in the interest of justice to proceed with these same claims was an abuse of process in the absence of fresh evidence which would have justified reopening the issue.

Halsbury (ibid para 981) says this on the fresh evidence exception.

"A case can be reopened only on discovery of fresh evidence which entirely changes the aspect of the case and was not and could not by reasonable diligence have been obtained before".

The lower Court as stated (supra) found there was no new evidence adduced to support the revocation application. We might observe here that not only was there no fresh evidence but crucial evidence contained in the will was also not available to the lower Court in 1996.

We find that the doctrine of res judicata is most relevant in the present proceedings and that it would be an abuse of judicial process if this Court allowed a second application to proceed when the cause of action was the same as in 1966 and was determined on the merits. Although not necessarily a further reason to bar the appellant it is observed that the unsuccessful applicant in 1966 did not appeal the Court's decision. It would be a mockery of justice to find that section 450 permits repetitive applications such as this one. Indeed the appellant has suggested the Court of Appeal might direct a rehearing of the application which in effect would be a third inquiry into the same issues. This Court rejects that invitation.

We have not found it necessary to answer all of the matters raised by the respondent who supports the judgments of the lower Court. The respondent's submission as to the reference in section 450 to any interest acquired in good faith is not a correct interpretation of the section and is not relevant in these proceedings.

This Court does not need to be reminded of the importance of family arrangements and settlements. In this connection also the Court is aware of the restrictions imposed by section 445 but that statutory provision does not disentitle a person from expressing a view as to how lands should be allocated upon death. Although a devise in a will shall have no force or effect there is no restriction on a family arranging between, themselves by consent how the deceased's lands should be allocated.

The Court has jurisdiction under section 448 and section 409 to give effect to a family arrangement. It is not uncommon for this to occur and indeed verbal and/or written agreement) in a family are part of the customary law and regarded as sacrosanct.

The Court finds that the lower Court acted correctly in deciding on the 16 January 1997 and on 8 June 1998 that the two issues of status and succession had been previously determined by the Court on 28 June 1966.

For the reasons set out above this appeal is hereby dismissed.

Counsel for the appellant is commended for her usual diligence and thoroughness in the presentation of submissions and supporting papers.

Mrs Arna is also thanked for her thoughtful submissions. The Court appreciated that an action of this kind does create stress and concern.

Costs

Mrs Ama, as the respondent appeared personally, and there is no award of costs in her favour. She is however entitled to be paid for disbursements incurred. There is an order against the appellant in favour of the respondent for the payment of actual and reasonable expenses incurred by the respondent in return airfare from the Cook Islands to New Zealand and any accommodation and incidental costs incurred and related to this appeal.

The Registrar is directed to fix such disbursements and pay the $1,000 held as security to the respondent.

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

Dated this 4^th day of September 1998.

McHugh, J