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Noona v Munro [2015] CKLC 8; Application 146.15 (11 September 2015)

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


APPLICATION NO: 146/15


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


AND


IN THE MATTER of an application by RANGI NOOANA to determine the right to hold the title of TINOMANA ARIKI


BETWEEN:


RANGI NOOANA
Applicant


AND:


TOKERAU MUNRO, ARCHER HOSKING and TAUEI SOLOMON
Objectors


AND


IN THE MATTER: of an application by TOKERAU MUNRO to determine the right to hold the title of TINOMANA ARIKI


BETWEEN:


TOKERAU MUNRO
Applicant


AND


RANGI NOOANA
Objector


Hearing : 7-8 September 2015
Appearances: Mr Charles Little for Mrs Rangi Nooana the Applicant
Mr Tony Manarangi for Mrs Tokerau Munro, Archer Hosking, Tauei Solomon the objectors


And


Appearances : Mr T Manarangi for Mrs Tokerau Munro the Applicant
Mr Charles Little for Mrs Rangi Nooana the Objector


Decision: 11 September 2015


DECISION OF THE HONOURABLE JUSTICE WILSON ISAAC


Introduction


[1] The application before the Court is by Mrs Tokerau Munro dated 23 April 2015 and is in terms of Section 409(f) of the Cook Islands Act 1915 asking the Court to determine the right of Tokerau Munro to hold the Tinomana Ariki title.

[2] I note that there is another application filed with the Court to determine the right of Rangi Nooana to hold the Tinomana Ariki title but at the advice of counsel at the commencement of the Court hearing on 7 September 2015, this application was not prosecuted at that time.

Background to this present proceeding


[3] The background to the prior application by Tokerau Munro was set out in my decision of 14 October 2014. I repeat some of that background and add to it as appropriate.

[4] Following the death of Tinomana Ruta Hosking in 2013 the process to elect a new Tinomana Ariki commenced.

[5] That included a meeting of the Kopu Ariki on 29 July 2013 where it was agreed that it was the turn of Te Pori-A-Pa to hold the title. Also at this meeting the sub kopu of Tepori-A-Pa, Isaia and Te Pori were given one month to return a candidate.

[6] At the next meeting of the Kopu Ariki on 29 August 2013 the minutes record that the Isaia line agreed that Matarii Vaineritua should hold the title. At this meeting also George Taikakara advised that the Taromi line had met and elected Tokerau Munro to contest the title.

[7] Following discussion it was resolved to reconvene the meeting in one month after Te Pori-A-Pa had meet and decided on a single candidate. The Tepori-A-Pa meeting took place on 19 September 2013 and it was resolved at that meeting by a majority vote of 3.55 to Tokerau Munro and 2.44 to Matarii Vaineritua, that Tokerau Munro would be the candidate for the Tinomana Ariki title on behalf of Tepori-A-Pa.

[8] At the next meeting of the Kopu Ariki on 28 September 2013 it was resolved by majority that Tokerau Munro be confirmed as the Tinomana Ariki. I will discuss this meeting in more detail later on in this decision.

[9] In my decision of 14 October 2014 I found that the process set out in the 1975 Agreement had not been followed in that a single candidate of the Isaia and Tepori sub kopu was not presented to the Kopu Ariki on 29 August 2013 to confirm or refuse. The Kopu Ariki were faced with another candidate from the Taromi sub kopu before it had confirmed or refused the candidate of Isaia and Tepori, namely Matarii Vaineritua.

[10] I determined that the application of Tokerau Munro should fail and directed that Matarii Vaineritua had to be confirmed or refused by the Kopu Ariki. If refused the process would need to start again in terms of the 1975 agreement, and Tepori-A-Pa would need to elect a new candidate to put to the Kopu Ariki.

[11] On 11 November 2014 Matarii Vaineritua withdrew as a candidate for the Tinomana Ariki title.

[12] On 20 November 2014 a meeting was called of Tepori-A-Pa to address the issues raised in my decision of 14 October 2014. Notwithstanding Matarii Vaineritua's withdrawal, at that meeting the minutes record that those present voted against Matarii Vaineritua by majority 5 to 4.

[13] Next there was a meeting on 25 February 2015 of the Tepori-A-Pa kopu to elect a candidate to present to the Kopu Ariki. The Isaia sub kopu nominated Rangi Nooana and the Taromi sub kopu nominated Tokerau Munro. This meeting was adjourned to enable the Tepori-A-Pa to consider the nominations.

[14] The final meeting in the process of addressing the decision of 14 October 2014 was held on 22 April 2015. This was a meeting of the Kopu Ariki resolved:

[15] It should also be noted that there have been two further meetings of the Tepori-A-Pa on 28 August 2015 and 1 September 2015 to consider:

The result was 4 yes, 1 reserved and 2 opposed.

(ii) Which sub kopu's turn is it to hold the Tinomana Ariki title?

The result was 3 for Isaia, 1 no explanation and 2 opposed

(iii) Whether Tepori-A-Pa's accept Rangi Nooana as their selection and election of the candidate to hold the title?

The resut was 3 said yes, 1 reserve, 3 opposed.

(iv) Do you agree that the sub kopu entitled to select and elect the candidate to hold the title of Tinomana Ariki are the five junior sub kopu of Tepori, Taromi, Isaia, Te Pori, Matoi and Ani?

The result was 3 yes, 1 reserve and 3 opposed.


[16] The application was heard by me on 7 September 2015 and 8 September 2015 at Rarotonga.

The Law


[17] The Law relating to the Court's jurisdiction to determine the right of a person to hold the Tinomana Ariki title is set out in my decision of 14 October 2014. For completeness I repeat the Court's jurisdiction.

Section 409(f) of the Cook Islands Act 1915 provides:


409. Miscellaneous jurisdiction of Land Court – in addition to the jurisdiction elsewhere conferred upon [the Land Court] by this Act, the Court shall have jurisdiction –

...

(f) To hear and determine any question as to the right of any person to hold office as an Ariki or other Native chief of any island.


[18] This provision does not give the Court jurisdiction to appoint an Ariki or Native chief. The Court's role is limited to answering questions as to the right of a person to hold such office.

[19] The 1948 Native Appellate Court Decision Re Makea Nui Takau stated:

It is not the function of the Native Land Court itself to appoint an Ariki or other Native chief to office. Any such appointment can only be made under the ancient custom and use of the Natives of the Cook Islands.[1]


[20] This was confirmed by the Native Appellate Court in Re Tinomana:

The most that the Court can do is to declare for the guidance and assistance of the people what it believes to be the custom governing such an appointment ... the most it could do if it found that Tepai had not been properly elected according to custom would be to declare that there had been no election, and then a fresh election would be necessary.[2]


This principle has not been altered over time. It was followed by the Land Court in decisions relating to the Makea Nui Ariki title in the 1995 decision of Dillon and McHugh JJ,[3] and in the 1999 decision of Smith J.[4]


The issues


[21] The main issue to determine is whether the election of Mrs Tokerau Munro as the Tinomana Ariki complied with the custom relating to that title. To determine this issue I will address the following matters:

Custom of the Tinomana Ariki Title


[22] Following the evidence and submissions of counsel for both parties I am of the clear view that the custom now governing the Tinomana Ariki title is set out in what has become known as the 1975 Agreement.

[23] The agreement reads:

NOTICE FOR TINOMANA ARIKI TITLE

WE, the family of Tinomana Ariki hereby confirm that we have elected NAPA TAUEI NAPA, a member of the Oakirangi family to hold the Ariki title of Tinomana.

We also confirm that from today onward the Ariki title of Tinomana be elected in the following manner –


(a) There are three families of Tinomana Ariki today from the three wives of Enuarurutini, Tepori-a-Pa, Oakirangi a Tangiau and Akaiti-a-Rua.


(b) The title to rotate in these ways:


(i) Napa Tauei Napa will hold the title on behalf of the Oakirangi family.


(ii) When Napa Tauei Napa dies the family of Akaiti-a-Rua will elect a new Tinomana from their family.


(iii) When Tinomana from Akaiti dies Tepori-a-Pa family will elect a new Tinomana from their family.


(iv) When Tinomana from the Tepori-a-Pa dies it will go back to the family of Oakirangi to elect a new Tinomana.


(v) This is to be the system forever.


(c) When the holder of the title is elected then they refer it to the House of Ariki of Ngati Tinomana and that Ngati Tinomana will confirm it. The Ngati Tinomana have the right to the Ariki or refuse any decision from any family. When the Ngati Tinomana confirms the Ariki then the speaker of the Ngati Tinomana will notify the elders (Mataiapo and Rangatira) and the people of the Vaka (clan).


[24] This agreement was confirmed and followed by the Court of Appeal in the 1994 decision of Vaineritua v Hosking[5] and I now confirm for the avoidance of all doubt that the correct custom in respect to the election and confirmation of a Tinomana Ariki title is as set out in the 1975 agreement.

14 October decision and Res judicata


The Respondents submissions


[25] Mr Little for the respondents argued that the doctrine of res judicata applied in this case and relied on 2 decisions from the Court of Appeal of the Cook Islands. The first Tamarua v. Ama[6] which set out there principles:

[26] The second case Mr Little relied on was Te Ariki's and others v. Sanderson nee Marau and others[7].

[27] This case reinforced the principles set out above as follows:

"Res Judicata – The Rule in Henderson v. Henderson"


The legal principles are not in dispute and a convenient summary of the applicable principles is found in Cross on Evidence 7th New Zealand Edition 2001 at 12.6 and 12.7.


"12.7. Claims which could not have been advanced – The idea underlying cause of action estoppel extends to claims which, though not the subject of formal adjudication, could have been advanced as part of the cause of action in the proceeding which resulted in the judgment alleged to constitute an estoppels. In the frequently quoted words of Wigram V – C:


"[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."


[28] In summary Mr Little's submission was that as my decision of 14 October 2014 dismissed Mrs Munro's application to determine her right to be Tinomana Ariki the doctrine of res judicata prevented the applicant from relying on the evidence presented to the Court in May 2013. That is, the minute of the meetings of the 19 September 2013 of Tepori-A-Pa to elect Tokerau Munro and of the 28 September 2014 of the Kopu Ariki confirming Tokerau Munro confirming as the Tinomana Ariki.

[29] Mr Little submitted that Mrs Munro could only rely on evidence that post dated my decision of 14 October 2014.

The applicants submissions


[30] In response Mr Manarangi for Tokerau Munro relied on the Privy Council decision of Baudinet v. Tavioni[8].

[31] Mr Manarangi submitted that the Board in this case took a broader view of the doctrine of res judicata and although agreed that there should be finality in litigation, relied on a quotation from Lord Bingham in Johnson v. Gore Wood & Co[9];

"It is however wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merit-based judgment which takes amount of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial questions whether in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it the issue which could have been raised before."


[32] The Board continued by stating that the nature of proceedings are an important consideration and in the case before it although the application was dismissed there was never an adjudication upon the merits of the subject matter in dispute and the dispute was still alive at the time of its decision.

[33] Mr Manarangi submitted that my 14 October 2014 decision was not in relation to the merits of Mrs Munro's application but the merits of the objections to Mrs Munro by the objector. He submitted that I found in favour of the objector and dismissed Mrs Munro's application without dealing with the merits of Tokerau Munro's case.

[34] Mr Manarangi also argued that the nature of the proceedings are important and are of significant public interest.

[35] In summary Mr Manarangi submitted that the doctrine of res judicata do not apply in this case and even if it did, the res judicata principles as set out by Mr Little do not apply to this case.

Discussion


[36] My decision of 14 October 2014 found that based on the meeting of 29 July 2013 the Isaia and Te Pori sub kopu of Tepori-A-Pa were entitled to elect a candidate. They elected Matarii Vaineritua from the Isaia sub kopu and presented her to the meeting of the Kopu Ariki on 29 August 2013. However before the Kopu Ariki could vote the Taromi line put forward their candidate Mrs Tokerau Munro to contest the title.

[37] No decision was made by the Kopu Ariki on 29 August 2013 and I found that in terms of the 1975 Agreement the Kopu Ariki had neither confirmed nor rejected Matarii Vaineritua. I concluded that Tokerau Munro had not been validly elected in terms of the 1975 Agreement and her application should fail. I then recommended that in terms of the 29 July 2013 meeting Matarii Vaineritua was the candidate elected and she should be put to the Kopu Ariki for confirmation or rejection. If she is rejected then the process should start again and Tepori-A-Pa must elect a new candidate to put to the Kopu Ariki.

[38] The question here is whether the principles of res judicata because of my decision of 14 October 2014 prevent Tokerau Munro from relying on the minutes of the meetings of 19 September 2013 and 28 September 2013 to support her present application and if not, do the subsequent meetings of 20 November 2014 and 22 April 2015 provide evidence of compliance with the 1975 agreement.

[39] Put simply, did my decision of the 14 October 2014 end the litigation for Tokerau Munro and was her reliance on the evidence of 19 September 2013 and 28 September 2013 an abuse of process.

[40] The Privy Council in the Baudinet case stress the importance of the nature of the proceedings before the Court. In the case before me, I am of the clear view that my 14 October 2014 decision did not end the litigation for the Tinomana Ariki title. In fact following the dismissal of the application I effectively sent the matter back to Tepori-A-Pa to elect a candidate to present to the Kopu Ariki.

[41] A Tinomana Ariki had to be found and I knew as did the parties and the Kopu of Tepori-A-Pa that the process would continue until a title holder was found. In short, my decision of 14 October 2014 was not the end of the litigation and Tokerau Munro was entitled to file another application in terms of Section 409(f) of the Cook Islands Act 1915, and have that application determined by the Court.

[42] Further, I agree with Mr Manarangi that I dismissed Tokerau Munro's application by determining the objection of Matarii Vaineritua's and because the objection was upheld, the Tokerau Munro application could not succeed.

[43] In so doing I did not need to consider the meetings of the 19 September 2013 and 28 September 2013. I dealt solely with the meetings of 29 July 2013 and 29 August 2013 and upheld Matarii Vaineritua's objection based on those meetings.

[44] Therefore, in my 14 October decision there was no adjudication of the merits of Tokerau Munro's case based on the subsequent meetings of 19 September 2013 and 28 September 2013. This is evident from a consideration of the discussion section of the 14 October 2014 decision where there no mention or consideration of the meetings of 19 September 2013 and 28 September 2013.

[45] Both of those meetings are important to the process set out in the 1975 Agreement and accordingly to the appointment process of determining a Tinomana Ariki.

[46] In respect to Tokerau Munro's new application this should now be done and the principles set out by the Privy Council in the Baudinet case, I consider enable me to do that.

[47] In summary following my 14 October 2014 decision, I find that the litigation in respect to this matter is not over and it is not an abuse of process for Tokerau Munro to rely on the meetings of 19 September 2013 and 28 September 2013 in the application presently before the Court.

Did the Kopu Tepori-A-Pa elect Tokerau Munro and was this confirmed by the Kopu Ariki.


[48] Mr Little maintains that Tokerau Munro was not elected by Tepori-A-Pa for the Tinomana Ariki title. Notwithstanding his argument in respect to res judicata, Mr Little submits that the meeting of 19 September 2013 was not conclusive because of the splitting of the votes and the meeting of the 28 September 2013 was a Kopu Ariki meeting and could not elect Tokerau Munro and the meeting of 22 April 2015 was stacked in favour of Taromi supporters and was a Kopu Ariki meeting and therefore could not elect Tokerau Munro.

[49] Mr Manarangi is of the view that Tokerau Munro was elected by Tepori-A-Pa at the meeting of 19 September 2013. He further says that if there was any doubt in that result, that doubt was removed by the results of the Kopu Ariki meeting on 28 September 2013.

[50] Mr Manarangi further submits that although Mr Little attempted to dilute the value of certain meetings the minutes speak for themselves and you cannot look behind the minutes of the meetings of Tepori-A-Pa and the Kopu Ariki.

Discussion


[51] The first matter I wish to address is the validity of the meetings in question. During the proceedings it because evident that counsel for the parties had agreed that the minutes of the meetings be taken as read and accepted as a valid record for the Court proceedings. This was clearly demonstrated when Mr Manarangi attempted to produce a further set of minutes to a particular meeting transcribed from an audio recording his client had taken. Mr Little objected setting out that counsel had agreed not to challenge the content of the minutes filed with the Court. Mr Manarangi did not pursue his request.

[52] I accept the agreement of counsel and although various comments have been made and accepted as the conduct of the meetings, I find that the minutes on the Court record reflect what took place at the meetings of Tepori-A-Pa and the Kopu Ariki.

[53] I now turn to the relevant meetings. First the meeting of 19 September 2013 was a Tepori-A-Pa meeting. It was called as a result of the Kopu Ariki on 29 August 2013 being faced with 2 candidates from Tepori-A-Pa namely Matarii Vaineritua and Tokerau Munro and therefore they sent the matter back to Tepori-A-Pa to elect one candidate.

[54] The result of the meeting on the 19 September 2013 show that Tokerau Munro received 3.55 of the votes and Matarii Vaineritua received 2.34 of the votes.

[55] This result was put to the Kopu Ariki on 28 September 2013and it is important to set out in detail the results of that meeting.

[56] The sub kopu of Tepori-A-Pa voted separately and at this meeting in terms of the 1975 Agreement the Kopu Ariki considered whether Tokerau Munro should be confirmed the Tinomana Ariki and the results were:
  1. Te Upoko – O – Ngariki
- Yes
  1. Te Kao
- Yes
  1. Taromi
- Yes
  1. Matoi
- Yes
  1. Ani
- Yes
  1. Isaia
- No
  1. Te Pori
- No

[57] The other 2 kopu of the Tinomana kopu's votes were:
  1. Oakirangi
- Yes
  1. Akaiti
- Yes

[58] The result was shown as 7 in favour and 2 against, Tokerau Munro being confirmed as the Tinomana Ariki.

[59] What is significant is that the sub kopu of Tepori-A-Pa voted 5 to 2 in favour of the Tokerau Munro and therefore if you convert this to a Tepori-A-Pa vote, the kopu of Tinomana Ariki voted 3 to nil to confirm Tokerau Munro as the Tinomana Ariki.

[60] I also consider it important to consider the evidence of Iro Rangi given to this Court on 7 September 2015 in relation to this meeting. Iro Rangi was giving evidence against the application of Tokerau Munro. Mr Rangi confirmed that he was the appointed speaker of the late Tinomana Ariki and was conversant with the custom of Tepori-A-Pa and the custom relating to the Tinomana Ariki title as set out in the 1975 agreement.

[61] Mr Rangi had an important role at the meeting of 28 September 2013. He opened and closed the meeting with a prayer. Also he met with the Ui Mataiapo after the vote and reported to the meeting that the Ui Mataiapo had a meeting and offered their blessings or support to Tokerau Munro as Tinomana Ariki.

[62] Further I asked Mr Rangi at the Court sitting that when he left this meeting did he consider that Tokerau Munro had been appointed in terms of the 1975 Agreement. He confirmed that the appointment had been made in terms of custom of the Tinomana Ariki title.

[63] I agree with Mr Rangi and find that at the meeting of 28 September 2013 Tokerau Munro was appointed in accordance which the custom of the Tinomana Ariki. As a result I grant her application of 23 April 2015.

[64] Although I can effectively end my decision at this point I will comment on the meetings of 20 November 2014 and 22 April 2014.

[65] Essentially these meetings were called to comply with my decision of 14 October 2014.

[66] At the 20 November 2014 meeting and notwithstanding Matarii Vaineritua's decision to withdraw as a candidate which I note was not known to the supporters of Tokerau Munro at that time, the minutes records a vote against Matarii Vaineritua of 5 to 4 by Tepori-A-Pa.

[67] Further at the Kopu Ariki meeting 22 April 2015 the Isaia sub kopu's candidate Rangi Nooana was rejected and Tokerau Munro was again confirmed by the Kopu Ariki again by all 3 kopu of Tinomana.

[68] In my view these meetings confirm what took place on 19 September 2013 and 28 September 2013 by both the kopu Tepori-A-Pa and the Kopu Ariki.

[69] Therefore by way of conclusion I determine in terms of Section 409(f) of the Cook Islands Act 1915, that Tokerau Munro has been appointed as the Tinomana Ariki in terms of the custom relevant to that title.

Rotation within the sub kopu


[70] Before I conclude this decision I will make some brief remarks concerning rotation within the sub kopu of the kopu of Tinomana, which was referred to at length during the course of the hearing.

[71] First in my view the custom the Tinomana Ariki is set out in the 1975 agreement. In terms of that Agreement there are no procedures set as to how each kopu elects its candidate.

[72] That procedure is left to that individual kopu. The process that is adopted whether by rotation or otherwise can only be determined by that kopu. It is not for the Court to intervene and nor can the process adopted by the kopu alter the custom as set out in the 1975 Agreement for the Tinomana Ariki title.

[73] A copy of this decision is to go to all parties.

Dated at Rarotonga this 11th day of September 2015.


W W Isaac, J


[1] Re Makea Nui Takau (1948) Native Appellate Court of the Cook Islands, App 147, 16 October 1948.
[2] Re Tinomana (1948) Native Appellate Court of the Cook Islands App 2. 14 October 1948.
[3] MacQuarie – Makea Nui Title (1995) High Court of the Cook Islands (Land Division) at Rarotonga, Apps 502/94 & 138/95 18 September 1995.
[4] Makea Nui Ariki (1999) High Court of the Cook Islands (Land Division) at Rarotonga Apps 299/98, 121/99, 26 November 1999
[5] Vaineritua v. Hosking (1994) CKCA; CA 5 of 1993 (8 August 1991)
[6] Tamarua v. Ama [1998] CKNZCA 23/12/2014; [1998] CKNZCA 4; CA 2 1998 (4 September 1998)
[7] Te Ariki’s & Others v. Sanderson nee Marau & Others CA 1/11 Application 188/2010
[8] Baudinet v. Tavioni [2012] CK-UKPC2 Privy Council Appeal No.0078.2010
[9] Johnson v. Gore Wood & Co [2000] UKHL 65; [2002] 2 AC 1, 31.

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