In re Herman [2011] CKHC 15; 405 of 2009 (7 March 2011)

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

APPLICATION NO. 405/2009

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

AND

IN THE MATTER of TEAIA MATAIAPO

AND

IN THE MATTER of an Application by TE UATAKIRI PITTMAN
Applicant

APPLICATION NO. 529/2009

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

AND

IN THE MATTER of the title known as TEAIA MATAIAPO

AND

IN THE MATTER of an Application by ATATOA JOSEPH HERMAN
Applicant

Hearing: 28 February 2011

Appearances: Mrs Tina Browne for Applicant in 405/2009 and for the Objector in 529/2009
Mr Norman George for Objector in 405/2009 and for the Applicant in 529/2009

Judgment: 7 March 2011

JUDGMENT OF THE HON. JUSTICE HINGSTON

Solicitors:

T Browne, Browne Harvey & Associates,
N George, Norman George & Associates,

[1] The Court has before it two competing applications for the Mataiapo Title. Each applicant has had a meeting of the Kopu Mataiapo, each one has been invested and both seek a ruling from the Court in terms of s 409(f) of the Cook Islands Act 1915. Each objects to the other's application.

[2] I propose disposing of each applicant's case separately, and as Mr Herman began the process his case will be dealt with first.

[3] The evidence of Mr Herman concerning his meeting to commence the process was that it was attended by the descendants (the line) of Te Poroa Te Aia. Notwithstanding, he produced evidence that Te Aia Auariki, Te Poroa's father, had at least four lines of descendants and possibly even six, if the Court was to accept the second union of Te Aia Auariki of which two children have living Issue.

[4] The question as to whether there are four lines of descendants or whether there are six assumes greater importance for Mr Pittman's case than that of Mr Herman. Thus I will deal with that question later.

[5] A further important aspect of Mr Herman's case is that he had a post-Investiture meeting of the alleged six lines, and counsel argues that the Court could take into account this meeting and confirm Mr Herman as Title holder. Mr Herman properly acknowledged that his original meeting with only one line present was insufficient, hence the importance of the post-Investiture meeting's validity. I find that the Post-Investiture meeting of the Kopu Mataiapo does not help Mr Herman.

[6] Mrs Browne referred me to the Appellate Court Title case: Kainuku Ariki decided in 1991, where there were also competing candidates for the Title. One had relied upon an Investiture held some nine years before her candidate selection (Kopu meeting); her case was lost in the Court of Appeal primarily on this point.

[7] I acknowledge that the facts in the Kainuku Ariki case differ because of the length of time between Investiture and meeting; however, I am bound by the decision. I mention that even if there had not been an Appellate Court decision I would not have accepted the second meeting as having any validity.

[8] As a meeting of the correct persons comprising the Kopu Ariki/Mataiapo/Rangatira Title matters is an essential prerequisite to validate the later Investiture, I find on his own evidence that Mr Herman, whether the Kopu Mataiapo comprised six lines (Kopu) or four lines (Kopu), has not established that the Court should accept and confirm him as Title holder.

[9] Mr Herman's case is dismissed

[10] Moving now to Mr Pittman. He has produced evidence that his meeting was attended by the four Kopu, being the surviving lines of Te Aia Auariki (ommon ancestor). His evidence is that he was selected by thby the Kopu Mataiapo and thus with his Investiture being held with proper customary rites the Court should accept him as the Title holder.

[11] Evidence was adduced that the 1968 Kopu selecting the Mataiapo also comprised the four Kopu. I accept Mr Pittman's evidence and now move to the question of whether there are further Kopu descended from a second wife of Te Aia Auariki.

[12] Mr Herman gave evidence that the second wife, named Tapaeru, had children of which two lines survive to this day. He produced MB 9/58 which, inter alia, has a genealogy whereby a person Te Aia Metua married Tapaeru, they having three children of which one died without Issue. He also gave evidence that descendants of the surviving line attended his post-Investiture meeting. Mr Herman also referred to a genealogy, apparently compiled by a Mr James Foster, which supported the two wives of the common ancestor. As well, he presented a genealogy, being a copy of a Mormon Church document. Unfortunately, neither of those documents were authenticated in any way, particularly with Minute Book acceptance.

[13] Mr Herman relied heavily on MB 9/58. Mr George submitted that there was sufficient evidence before the Court for a finding on the balance of probabilities that there were the two wives resulting in a further two Kopu. Mrs Browne produced Minute Book extracts dealing with land that was successfully claimed by the children of Te Aia Metua and Tapaeru, these lands did not figure in the domain of Te Aia Mataiapo.

[14] With regard to these two Kopu lines I find that there is insufficient evidence before me to accept these additions. There is no Minute Book authentication. Rather, what is before me, and presented by Mrs Browne, casts real doubt on the two Kopu line argument. The genealogy purporting to be the one compiled by James Foster and that of the Mormon Church were unsupported. If these had been supported with evidence it would have helped the Court. Sadly nothing was presented. Hence I find that the Kopu Mataiapo for the Teaia Mataiapo Title comprises the four Kopu lines as presented to me. I refer to the genealogy at MB 224; this genealogy was given in evidence by Charles Cowan, the grandfather of Mr Herman, in 1954 and validates my above finding.

[15] This finding is crucial insofar as Mr Pittman is concerned, as the Kopu Mataiapo meeting where he was selected as Teaia Mataiapo meets the prerequisite for a valid Investiture. There was no evidence impugning the Investiture of Mr Pittman or his character.

[16] I find that Mr Pittman has established in terms of s 409(f) of the Cook Islands Act 1915 that he has the right to hold the Teaia Mataiapo Title.

Hingston J