Short v Hosking [2005] CKHC 2; Application 186 of 2004 (22 March 2005)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)

Application No. 186/2004

IN THE MATTER of Rule 221 of the Code of
Civil Procedure of the High Court 1981

AND;

IN THE MATTER of the Mataiapo Title known as TEREI
MATAIAPO and the Mataiapo Title known as MAUI MATAIAPO

BETWEEN:

IAVETA TAUNGA O TE TINI SHORT and
TUINGARIKI SHORT
Applicant

AND;

ATURANGI HOSKING
Respondent

Mrs T Browne for Applicant
Mr N George for Respondent

Date of Hearing: 22 March 2005
Date of Decision:

DECISION OF SMITH J

This is an application under Rule 221 of the Code of Civil Procedure of the High Court 1981 seeking a rehearing of an application concerning the Terei Mataiapo and Maui Mataiapo titles the decision in which was delivered on the 19th March 2004.

In that case the learned Judge found that the objector, the Respondent in these present proceedings, "with Court accepted genealogy and living evidence has proved his family is very much of the kopu that is entitled to elect/select these MataiApos." Based upon that and the fact that the objector’s family were not invited to take part in the selection process, the Court concluded that the election of Iaveta Short was flawed and also that there had been no election/selection process for Tuingariki’s appointment: Neither holds the titles.

Mrs Browne, counsel for the applicants claims that the decision of the Court was wrong. She alleges this on various grounds each of which is worthy of investigation.

First, the genealogy accepted by the Court in the first instance is not as the Court said, "Court accepted genealogy."

The genealogy appearing at MB4/226 which was referred to by Mrs Browne during the first hearing was not accepted by the Court: That genealogy was presented by Rua Naku in a case claiming lands at Vaimaanga. The evidence is recorded as MB4/223 to 240, Rua Naku was endeavouring to establish a line to Terei in order to claim the lands. That he was unsuccessful is clearly evidenced when one peruses the decisions of the Court at MB 239-240. Of the eight portions of land in dispute all but 6b was given to Terei. In doing so the Court stated: "The claim to 6b is opposed in part by Terei who is the undoubted owner of most of Vaimaanga and the Mataiapo of the Tapere." The emphasis has been added. The Court went on to say:"Rua Naku claims that he is of the Terei family but he says his land is not Rangatira land. This one, the Court cannot understand. If he is of the family of Terei his land should be Rangatira land and the fact that it is not would seem to be evidence that he is not a Terei."

Obviously, the Court had difficulty in reaching a decision in this matter for the learned Judge went on to say: "The evidence on both sides is such that the Court can not arrive at any satisfactory conclusion but the case must be settled once and for all."

The fact that the Court in awarding the land gave seven pieces to Terei and only one to Rua Naku would indicate that the Court favoured the evidence of Terei. It would be presumptuous therefore to accept the genealogy and MB 4/226 as being "Court accepted." This is hardly evidence that Kaena and Ruatea were siblings for the purposes of proving a blood line between the parties.

The genealogy appended to the decision of Hingston J purporting to show the objector’s genealogy is also suspect. It is not evidenced by any Court reference. When compared with that recorded at MB 4/233 one can see the discrepancy in the names of Teatuairo. In the appendix for the decision his first wife is shown as Ngataa and the second is Vaiariki. At page 10 of the Bundle of Documents produced during the hearing the genealogy from MB 4/233 is produced showing the two wives as being Ngataa and Tai. Here again the Court accepted genealogy has been disregarded in favour of that unsubstantiated and produced by the objectors.

The genealogy of the applicants is that appearing at pages 8 & 9 of the Bundle of Documents produced at the hearing before Hingston J. That genealogy is said to have been computed by Judge Morgan but was challenged by Mr George, who claims that it cannot be taken as authoritative however, using the terminology of Judge Hingston this genealogy must be "Court accepted" since right through the lines the learned Judge Morgan has inserted various Minute Book references which substantiate the various unions and progeny.

Nowhere within that genealogy is there any evidence of blood lines between the parties hereto.

Mrs. Browne also denies the objectors ever held the title Te Rei.

Mr George, submits that Teatuairo held the title in support of this, he produced page 320 from MB 8 where it is recorded.

"Teatuairo sworn: - I am the Mataiapo." This was on the 19th February 1917.

Tuti Taringa gave evidence by affidavit but did not attend this hearing. He stated that he was 83 years of age and at one time lived with his grandfather Te Rimaati a Raina who died in 1937 having been born in 1828. This would have made him 109 years old at his death. The deponent named here would have been 15 years of age if his grandfather lived to 1937. Mr Tuti Taringa deposed that three Mataiapo, Terei Teatuairo, Uirangi and his grandfather Te Rimaati a Rainai were whipped for not recognizing the true Sabbath. They had their titles removed from them by Pa Ariki, who stripped Terei Tetuairo and purported to give it to Tamuera Orometua. It was claimed that this was in 1899.

This passage of events is challenged by Mrs Browne for the applicants. Throughout the Court records there are many references to the fact that Tetuairo who was an adopted son of Teariki Tamatapu did not hold the title.

At MB 4/143-4 it is recorded that Teariki Tamatapu made a will providing for the title to go to Teatuairo. The will was taken to Pa who objected because Teatuairo was an adopted son of Teariki Tamatapu, he did not receive the title. Evidence confirming his adoption is recorded at MB 7 page 233.

Teatuairo himself at MB 7 page 224 indicated that he did not hold the title. The records show that he said: "I practically held title from 1880/6. I claimed title in Pati’s death. I opposed Samuel Terei, and had no backing." During the time Tetuairo claimed to have "practically" held the title, it was held by his adopted father Terei Tamatapu, who died in 1886. It is possible that by using the word "practically" Tetuairo was indicating that he had been carrying out title duties on behalf of his ailing father.

If Teatuairo did not hold the title in 1886 and states that Pa and Samuela took it, how could he possibly have been stripped of the title by Pa in 1899?

There is absolutely no evidence to indicate that the objector’s family ever held the title Terei. To the contrary, all evidence throughout the Court minutes establish the continuous retention of the title by the applicant family.

With respect to the decision of Hingston J, it is the family of the applicants who constitute the Kopu to approve. They are the applicants family and Moria family who support the applicants.

The records from the Court show clearly that the holder of these titles decides upon the successors who are then presented to Pa Ariki and the family for approval.

Paiau, the mother of the applicants gave the title Maui to Tuingariki Short over twenty years ago. Pa Ariki then took her to the Puara of Takitumu where he was accepted without objection. No objections were made by the Maria line.

In 1999 Paiau vested the title Terei in her other son Iaveta Short. A meeting of the Mataiapo family was called. That was restricted to the Samuel Terei family and Maria family the only ones who can relate back to the Terei title. There was no objection.

Having regard to the wealth of evidence in support of the applicants and in their claim to the title, the absence of any genealogy connecting the objectors to the title this Court must search the inevitable conclusion that the lower Court placed too much emphasis on unsubstantiated evidence in accepting the genealogies of the objector.

Clearly the applicants have been elected properly in accordance with the customs of the tribe, an investiture has been undertaken and both are right and proper persons to hold the respective titles.

The rehearing is granted and orders are made under Section 409(f)/15 accordingly.

JUDGE