Asekona v Misikea [2017] NUCA 1; App No. 10130/5 (3 July 2017)

IN THE COURT OF APPEAL OF NIUE

App No. 10130/5

UNDER Section 75, Niue Amendment Act (No 2) 1968

IN THE MATTER The Land known as Part Togalupo, Section 109C, Alofi District and a decision of the High Court of Niue (Land Division) made on 4 September 2009 at Land Minute Book 15 Folio 189-194

BETWEEN HALO ASEKONA

Appellant

AND FILIENIKE PEAUVALE-MISIKEA

Respondent

Hearing: 24 March 2015

(Heard at Alofi)

Court: Savage CJ, Coxhead and Reeves JJ

Appearances: Romero Toailoa for the Appellant

Maru Talagi for the Respondent

Judgment: 3 July 2017

DECISION OF THE COURT OF APPEAL

Introduction

[1] This is an appeal from a decision of the Niue High Court (Land Division) made on 4 September 2009 determining the common ancestor, Mangafaoa, and Leveki Mangafaoa of the land known as Part Togalupo, Section 109C, Alofi District (the land).
[2] This case is complicated by the fact that there is already a common ancestor, Mangafaoa, for this land determined by the Court in 1986.

Background

[3] On 28 October 2006, the High Court (Land Division) made an order evicting Filienike Misikea (the respondent) and any members of her extended family, also known as the Peauvale Fakapuna family or the Misikea family, from the land on the basis that they did not prove any blood connection to the common ancestor of the land, Mafa.^[1] The Court found that there was no evidence of the customary adoption claimed, and unless the family could establish other evidence of a relationship to Mafa, they were on the land with the consent of the Mangafaoa, which had now been withdrawn; there was no evidence to suggest that the family had any rights to remain on the land against the wishes of the Mangafaoa of the land.
[4] This order was appealed, and on 21 April 2009, the Court of Appeal allowed the appeal with the consent of the parties and referred the matter back to the High Court to:

• (a) Determine the appropriate common ancestor for the land;
• (b) Determine the appropriate Leveki Mangafaoa for the land; and
• (c) Consider the eviction order and who is entitled to occupy the land.

[5] The High Court heard the matter on 24 April 2009. In a judgment, dated 4 September 2009, Justice Isaac declared Atumatagi to be the common ancestor and accordingly, the Mangafaoa to be the Mangafaoa of Atumatagi. He further declared that both the Misikea and Asekona families have a right to occupy the land. However, to ensure certainty, Justice Isaac invited Filienke Misikea to file an occupation application for the area she occupied, and the Asekona family to consider whether they felt it appropriate to file an occupation application for the balance of the land. Filienike Misikea was appointed the Leveki for the Misikea family, leaving the Asekona family to appoint a Leveki for their family. This is the decision now under appeal.

Preliminary matter

[6] As we have noted this is an unusual situation. These proceedings and their procedural history are complicated. How Justice Isaac came to be seized of this matter is also not straight forward.
[7] The appellant argued that the Court of Appeal in its 2009 determination did not have the ‘mandate’ to direct the lower court to reconsider the common ancestor for the land as that matter had been determined in 1986 and had not been the subject of appeal. The appellant submitted that both the 2009 Court of Appeal decision and subsequent High Court decision should be declared irregular and set aside. Here the appellants say there were irregularities sufficient to have caused a miscarriage of justice.

Did the Court of Appeal have jurisdiction to order a re-determination of the common ancestor of the land?

[8] The appellant submits that the jurisdiction of the Court of Appeal to hear appeals from the High Court is provided under the following sections of the Niue Amendment Act (No 2) 1968:

75 Appeals from Land Court

(1) Except as expresslvided toed to the contrary in this Act, the Land Appellate Court shall have jurisdiction to hear and determine appeals from any final order of the Land Court, whether made under the principal r this Act or under any othy other authority in that behalf.

(2) Any such appeal may be ht ught as of right at the suit of any party to the proceedings in which the order is made, or at the suit of any person bound by the order or interested therei>

(3) Every such appeal shalcomm commenced by noti notice of appeal given in the prescribed manner within 2 months after the date of the minute of the order appealed from (whether before or after the commencement of this Act).

78 Powers nd Appellate Court ourt on appeal

On any appeal, the Land Appellate Court may, in its discretion, do any one or more e following things:

(a) m the order appealed from:from:

(b) AnnulAnnul that ordeth or h or without the substitution of any other order therefor:

(c) Vary that order:

>

(e) Direcew trial or rehearing ring by the Land Court:

(60; Mny order which thch the Land Court might have made in the pthe proceedings:

(g) Dismiss any appeal.

[9] The appellant submits that the decision under appeal in 2009 was the 2006 decision of Hingston CJ, ordering that the respondent and her family be evicted from the land. Hingston CJ did not consider the issue of the common ancestor of the land which had already been determined by Dillon CJ in 1986. The appellant submits that it was not open to His Honour was bound to follow the 1986 decision and simply apply it to the issue before him.
[10] The 1986 decision was not appealed, nor was it the subject of the 2009 appeal. The appellant submits therefore that the Court of Appeal did not have the ‘mandate’ to direct re-litigation of the common ancestor as that matter had been judicially settled and the outcome was binding on the parties. It was therefore not open to the parties to agree to re-litigate the issue; they were bound by the 1986 decision.
[11] The appellant submits that the Court of Appeal’s order for a redetermination of the common ancestor should be declared irregular and set aside. The 2009 High Court decision declaring Atumatagi to be the common ancestor should also be declared irregular and set aside on the ground of res judicata.
[12] The appellant also relies on the proposition that if a judgment is entered irregularly, the Court can set it aside ex debito justitiae, or “as required in the interests of justice”, as per Anlaby v Praetorius [1888] UKLawRpKQB 55; (1888) 20 QBD 764.

Respondent’s submissions dated 25 February 2015

Did the Court of Appeal have jurisdiction to order a re-determination of the common ancestor of the land?

[13] The respondent submits that the purpose of a rehearing is to hear new evidence, or evidence not taken into account when the eviction order was made. In 2009, the respondent had new evidence provided by Foufou Marion Mc Quoid, an elder historian, and Tutuli Heka, the current Leveki of other parts of the Togalupo lands, in support of their position that the 2006 eviction order was unjust.
[14] The respondent submits that the 2006 eviction order was based on the submission that she has no blood connection to the land and therefore has no right to occupy the land. The respondent contended that she does have a blood connection to the land, but this was not accepted. However, the respondent submits that the real reason for the eviction application is clear in the appellant’s current submissions; that relations between the parties had soured. In 1986, Jock Fala Heka, the head of Togalupo, asked Kalo Asekona and Tolulima to leave his house because they were disrespectful during a meeting convened at the house.

The law

[15] Sections 75 and 78 of the Niue Amendment Act (No 2) 1968 state:

75 Appeals from Lanrt

>

(1) Except aressly provided toed to the contrary in this Act, the Land Appellate Court shall have jurisdiction to hear and determine appeals from any final order of the Land Court, whether made under the ipal Act or this Act or undr under any other authority in that behalf.

(2) Any such appey be brought ught as of right at the suit of any party to the proceedings in which the order is made, or at the suit of any person bound by the order or interesherein.

(3) Every such a shall be comm commencmmenced by notice of appeal given in the prescribed manner within 2 months after the date of the minute of the order appealed from (whether before or after the commencement of this Act).

[16] Section 2 of the Land Act 1969 states:

“Mangafaoa” in relation to Niuean land means the family or group of persons descended from a common ancestor, including any person who has been legally adopted into the family, who at any given time are recognised a s entitled by Niuean custom to any share or interest in the land, and excludes a former member of the family legally adopted into some other family. Where Niuean land is owned by a single person exclusively, that person is the Mangafaoa of the land.

[17] Sections 12 and 14 of the Land Act 1969 state:

12 Ownership determined by ascertaining and declaring Mangafaoa.

The Court shall determine the ownership of any land by ascertaining and declaring the Mangafaoa of that land by reference to the common ancestor of it or by any other means which clearly identifies the Mangafaoa.

14 Appointment of Leveki Mangafaoa

(1) When the ownership of any land has been determined any member of that Mangafaoa who has reached the age of 21 years may apply in writing to the Court for an order appointing a Leveki Mangafaoa of that land.

(2) If the application is signed by members who in the Court’s opinion constitute a majority of the members of the Mangafaoa whether resident in Niue or elsewhere the Court shall issue an order appointing the person named in the application as the Leveki Mangafaoa of that land.

(3) If no such application is received within a reasonable time, or applications are each signed by members who, though having attained the age of 21 years, constitute less than a majority of the Mangafaoa who have attained such age the Court may appoint a suitable person to be Leveki Mangafaoa of that land.

(4) The appointment of a Leveki Mangafaoa shall not be questioned on the grounds that any member of the Mangafaoa was absent from Niue, but the Court may consider any representation made in writing by any member so absent.

(5) Any person who is domiciled in Niue, and whom the Court is satisfied is reasonably familiar with the genealogy of the family and the history and location of Mangafaoa land, may be appointed as a Leveki Mangafaoa of any land, but if he is not a member of the Mangafaoa he shall not by virtue of such appointment acquire any beneficial rights in the land.

(6) In appointing any Leveki Mangafaoa the Court may expressly limit his powers in such manner as it sees fit.

Were there irregularities in the orders made by the Courts?

1986 Common Ancestor determination

[18] In 1986 Dillion J heard an application to determine title and for the appointment of leveki magafaoa for the land in question. He ordered that the common ancestor was Mafa and appointed Maatapi as the Leveki Magafaoa. The current title records the Magafaoa as Mafa.
[19] The minutes for the case heard on 3 and 4 December 1986 are reproduced in full.

NIUE HIGH COURT SITTING LAND DIVISION
3^RD DECEMBER 1986
JUDGE J D DILLION

APPLICANT: Mrs Maatapii Peauvale

APPLICATION No: 3432/2-17

3433/2-17

APPLICATION: Determine of Title

Appoint of Leveki Magafaoa

LANDNAME: Pt Tongalupo

DISTRICT: Alofi

Applicant – Maatapi Peauvale

Objector – Berry Asekona

Applicant – Confirms sworn – statement.

X applicant –

How did you find a way to this land?

I was adopted by Mafa and lived there ever since.

Is Mafa same block as you?

Mafa is natural mother of Tokopala and I was looked after by them.

Is it tru you are legally adopted by Mafa?

Yes – by custom. I was adopted by Mafa as her successor.

Are you blood related?

I don’t understand.

So you are cared for by Mafa?

I am truly adopted by Mafa until she passed away.

Mafa’s natural father is Iosefa. Iosefa was married to Tokopala.

Adjourn at 11pm.

LAND MINUTE BOOK NO. 5 FOLIO 3

NIUE HIGH COURT SITTING LAND DIVISION

4^TH DECEMBER 1986

JUDGE J D DILLION

APPLICANT: Mr & Mrs Maatapii Peauvale

APPLICATION No: 3432/2-17

3433/2-17

APPLICATION: Determine of Title

Appoint of Leveki Magafaoa

LANDNAME: Pt Togalupo

DISTRICT: Alofi

8:30am continued:

Peauvale husband sworn –

Referring to plan – area C – who built this house? – I built it in 1960. I built 3 kitchens in 1960, area B. Veti and her children built that. Veti is related to Talalina who is related to Mafa. Veti is the wife of Asekona. I don’t know if Mafa and Asekona are related as to area B. I have not planted on this area. I used area for building canoes. Did Asekona family ever use area B? They never use land for planting. Do they ever use kitchen – way back – not used since left for New Zealand. Now area A ever used for planting – coconut trees – Asekona never used this land. I can tell how Niutolu came into area B he always conferred with Mafa to plant on area B. He never did anything without conferring with Mafa. They built a kitchen on this land – destroyed then put a pig sty.

No crops

X Asekona –

Who planted coconut trees on block, i.e. the original?

Mafa who planted fruit trees on Block B except two mango trees?

Bananas and breadfruit plant by your mother Veti?

When you first came the land already planted with fruit trees?

Re the stone pig sty on B?

Then when I arrived Palamuku was the name of the pig.

There was an old house in Block B not on A.

How many holes on B including 1 still there?

How many on A – none.

The first house built was by Vetevihi – who is a cousin to Mafa.

Court –

Now about Iosefa – Object claimed Iosefa orignate from Makefu – the mother of Iosefa was a lady from Liku by the name of Moka. Fakapuna is father of Ahukale – Ahukale had 4 children – 3 girls 1 boy – name of boy was Iosefa. Ahukale passed away and Moka remarried to Iakopo. Iosefa was the granfather of Mafa (f).

Objectors – George Hiku sworn –

Fakapuna was father of Iosefa who married to the last daughter of Vetevihi by the name of Tokopala. Iosefa and Tokopala marry and have a daughter by the name of Nike. Nike married Malo, and they have a daughter named Mafa. Only Iosefa was brought into the family. Vetevihi Pamatatau (refer his will) adopted Hinerangi Drake, Iosefa was brought into this land by Vetevihi.

X by Peauvale applicant husband-

Niutolu (m) erected cook houses on area B. Niutolu and Mata were cousins. All fruit trees planted by Niutolu accept two mango trees. Maatapii we’re to be caretakers only where the house is now. It is customary to be buried on land. Mafa buried on south side of the land – only shifted to this land in later life. Many graves are shown on land (plan) on opposite side of the road. Applicant has no blood relationship to this land. Letter of eviction sent to applicant by Vetevihi (m) who is now deceased. He wanted to keep the house that the applicant had built. I think this is fair. They sent this letter in 1964.

Applicant agrees to limit her application to area C on plan only – 1544 m²

Objections withdrawn as to this area

Order as Te Puna Magafaoa – to Mafa.

Orders accordingly

Leveki to Maatapii Peauvale

Orders accordingly

Both orders by consents

LAND MINUTE BOOK NO 5 FOLIO 3 – 6

[20] As noted by the appellant the 1986 decision was never challenged by any of the parties, by way of appeal or application for re-hearing. Although there had been subsequent proceedings concerning this block of land none of those claims have challenged the original common ancestor determination.

2006 High Court decision

[21] The background to Justice Isaac being seized of this matter arises from an appeal against the 2006 decision of Hingston CJ. The decision of Hingston CJ dealt with an application for eviction. He did not hear any challenge to the common ancestor.

2009 Court of Appeal decision

[22] The Court of Appeal heard an appeal against the order of eviction which came before the court on 22 April 2009.
[23] The record of the appeal is incomplete as the minutes of the hearing do not appear to disclose the full extent of the hearing or the issues discussed. However, the parties present in Court appear to have agreed to send the issue back to the High Court to allow the High Court to hear evidence to determine a new ancestor and also examine the issues that related to the eviction.
[24] There are only brief notes from the Court of Appeal hearing. No orders can be found. All that is on the record is the following:

“Mr O Halloran: I understand what you are saying

Judge: And if you’re not confident

Mr O Halloran: No we are extremely confident

Judge: Well

Mr O Halloran: The only issue

Judge: I would like us to stand down the court for 10 minutes and you guys to have a talk and see were you come to because we do have some issues with standing and all those sort of things and we may not have to get into those if some this if well if some consensus is made because we do have a problem that were to we go from Mafa. Your saying to go back, how do we go back, we got to go back to court? To determine a new common ancestor.

Stand down court for now.

Judge: Yes who wishes to speak from counsel?

Mr Starling: I am happy to sir.

Judge: Yes. Thank you

Mr Starling: The parties have agreed to have this matter set back to the High Court to allow the High Court to hear the evidence to determine a new ancestor, and also to look at issues that relates to the evictions are including the not legitimate occupation.

Judge: Mr O Halloran

Mr O Halloran: That’s agreed to by us

Judge: Thank you. So what we will do is just note that in business in this appeal as allowed by consent on the basis that the are matter be remitted back to the High Court for hearing and we will hear it on Friday at 1.00pm Judges I will sit along it with Judges Savage at that time will hear submissions of both side relating to determination of an appropriate common ancestor and their for the appropriate Magafaoa for this land determinations of an appropriate Leveki and also issues relating to eviction order. So on Friday I would like both counsel to presents submission on those matters and called evidence relating to each of those issues. Their will be ability for each side to cross examine those witnesses and at the end of the day hopefully will come up with the decision which is robust and will allow those the Magafaoa associate with this land to progress issue in relation to this land. Thank you

Mr O Halloran: As Court pleases”

Can the Court of Appeal direct a new trial or a new rehearing on matters that were not appealed?

[25] Under s 41 of the Land Court Rules 1969 all appeals to the Niue Court of Appeal are by way of rehearing. On appeal the Court of Appeal may do the following:^[2]

• (a) Affirm the order appealed from;
• (b) Annul that order, with or without the substitution of any other order therefore;
• (c) Vary that order;
• (d) Direct the Land Court to make such other or additional order as the Court of Appeal thinks fit;
• (e) Direct a new trial or rehearing by the Land Court;
• (f) Make any order which the Land Court might have made in the proceedings;
• (g) Dismiss any appeal.
  

[26] The Court of Appeal also has the ability to allow an appeal on grounds not set out in the notice of appeal as long as it would not cause an injustice to the other parties.^[3]
[27] The powers of the Niue Court of Appeal are similar to the powers on appeal of both the Māori Appellate Court and New Zealand Court of Appeal.
[28] Section 55 of Te Ture Whenua Māori Act 1993 provides that appeals to the Maori Appellate Court shall be by way of rehearing. In Karena – Karaka Huarua A and B the Māori Appellate Court after outlining the Māori Appellate Court’s powers per s 56, stated:^[4]

[32] These powers are widely stated and intentionally so. They are designed to enable this court proactively to resolve not just the immediate legal issue confronting the parties but also the underlying problems, which, if not addressed, will lead to further and unnecessary litigation.

[29] McGechan on Procedure provides the following commentary on r 48(5) Court of Appeal (Civil) Rules 2005 (NZ):^[5]

In practice the Court is unlikely to review a judgment under appeal beyond the extent required by the notice of appeal or cross-appeal because, in the absence of hearing from parties who may be affected by such action, injustice could result. Arrangements may have been reached of which the Court is unaware.

[30] Appeals by way of rehearing are conducted on the record of the evidence given in the Court below (that is, not as a new trial with the evidence recalled) subject only to power to admit further evidence and apply the law at the time the appeal is heard.^[6] The Court is empowered to do that which the High Court ought to have done, as at the date of the appeal. An appellate court may make findings of primary fact and findings of fact based on inference, whether by deduction or induction, from those primary facts.^[7]
[31] The subject of the 2009 Court of Appeal proceedings was the eviction order made by the High Court in 2006. There is no evidence that Hingston J was required to consider the correctness or otherwise of the 1986 determination of the common ancestor. It appears that by consent of the parties the Court of Appeal directed the High Court to reconsider the matter and determine a new common ancestor – despite there already being a common ancestor on the title.
[32] It is clear that an appellate court has wide powers and is empowered to do that which the High Court ought to have done and has an overriding objective to do what is in the interests of justice. However those powers do not appear to extend to remitting a matter back to the High Court that was not the subject of appeal.
[33] This view is further strengthened by the general principle of law regarding the finality of litigation. In Herron v Wallace the Court referred to that general principle as summarised in Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd:^[8]

The principle of finality in litigation gives rise to a rule of law that makes conclusive final determinations reached in the judicial process:

“Unless a judgment of a Court is set aside on further appeal or otherwise set aside or amended according to law, it is conclusive as to the legal consequences it decides.”

The rule reflects both the public interest in there being an end to litigation and the private interest of parties to court processes in not being subjected by their opponents to vexatious relitigation. The rule recognises, however, that a policy of absolute finality is unsafe. It accommodates exceptional situations by allowing final determinations to be revisited but within prescribed limits. For example, where there is no abuse of process involved, an application for recall of the judgment of a court can be made on grounds, which include “where counsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance”. Limitations on the exceptions ensure that they do not subsume the general rule of finality and conclusiveness of judgments. The need for this was recognised by Lord Wilberforce in the leading case on the availability of the particular exception which Redcliffe relies on in this case:

“For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.”

[34] We note further that in Matchitt v Matchitt – Te Kaha 65 the Maori Appellate Court in discussing its power to remit matters by consent back to the lower court stated:^[9]

[13] Rule 8.19(2) enables this Court to allow an appeal and order a rehearing where we conclude “on the face of the appeal” that the proceeding should be reheard, and the parties consent.

...

[15] We have considered r 8.19(2) in the context of the 2011 Rules and ss 54 to 57 of the Act as they apply to this Court. In our view, where the Court is invited to order a rehearing by consent pursuant to r 8.19(2), it is still necessary for the Court to satisfy itself that the appeal has merit, that is, that there is an error that taints the decision under appeal in some respect. That is the logical consequence of the wording in the rule, which provides that the Court may “allow the appeal” if “it is clear on the face of the appeal that the matter should be reheard”. In order for the Court to “allow the appeal”, it must surely overturn the decision; and in order for the Court to determine that the matter “should be reheard”, it must first conclude that there is merit in the appeal.

[16] There is a more fundamental reason why this Court must reach its own conclusion on the merits of the appeal when invited to adopt the r 8.19(2) procedure. An appeal challenges the decision of a lower Court. The integrity of our system of justice requires that an appellate court not intervene in lower Court decisions without proper grounds. Simply rubberstamping the parties’ agreement that there should be a rehearing, without going on to assess the merits of appeal, runs the risk of unreasoned appellate decisions and exposing the appeal process to potential abuse.

[35] As pointed out earlier the record for the Court of Appeal hearing is incomplete. We cannot assess whether the Court reached its own conclusion on the merits of the appeal or if the Court simply endorsed the parties’ agreement that there should be a hearing to determine a new common ancestor.
[36] On its face the 1986 order was not subject to appeal and stands as a conclusive determination of the common ancestor. It was not open to the Appellate Court to remit the determination back to the High Court as it was not the subject of the appeal which was before the court.

Has there been a miscarriage of justice?

[37] The appellant submitted that both the 2009 Court of Appeal decision and subsequent High Court decision should be declared irregular and set aside per the principle of “ex debito justitiae”. The appellants say that the decision to remit the determination of the common ancestor back to the High Court was irregular and should be set aside in the interests of justice.
[38] The basic principle is that a judgment may be set aside on the grounds of irregularity if justice requires that the judgment be recalled.
[39] In Horowhenua County v Nash (No 2) the Court stated:^[10]

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[40] Rule 15.10 of the High Court rules provides that default judgments may be set aside or varied by the court on such terms as it thinks just, if it appears to the court that there has been, or may have been, a miscarriage of justice.
[41] In the New Zealand High Court decision of KBR MacKinder Ltd v Fine Art Productions Ltd the Court stated that the issue for the Court to consider is the possible miscarriage of justice if the judgment is allowed to stand. The answer is likely to vary depending on whether the judgment was irregularly or regularly obtained.^[11]
[42] Further in Richmond v Heskett Holdings Ltd (1995) 8 PRNZ 533 the Court held that a judgment in circumstances in which went beyond the pleadings was obtained irregularly with the consequence that the defendant was entitled to have it set aside ex debito justitiae. ^[12]
[43] As such in determining whether the 2009 Court of Appeal and High Court judgments should be set aside the Court should consider whether the judgments, if allowed to stand, would cause a miscarriage of justice.

Common Ancestor determination decisions in Niue

[44] Once a common ancestor is determined there are limited opportunities to change that determination. A person may seek to have the decision changed on appeal or rehearing. If the decision is not appealed or a rehearing is not sought then there is no specific power to cancel a title set out in either the Niue Amendment Act (No.2) 1968 or the Land Act other than in cases of fraud.
[45] As was stated in this Court’s decision of Tafatu v Strickland^[13]:

[48] Neither the Land Act nor the NAA contain any specific statutory power to cancel or change the common ancestor, which determines the mangafaoa. This is unsurprising given the significance of title determination to the Nuiean land tenure system and the likely consequences if such orders could be cancelled. Section 52 underlines this by providing that every order of the Land Court determining or affecting title to Niuean land shall bind all persons having an interest in the land.

[49] The exception is where orders have been obtained by fraud, in which case those orders may be annulled. In such circumstances, cancellation of a mangafaoa’s land title would be a very serious matter which would necessitate a fresh investigation of title by the Court, including an approved survey and evidence of the matters set out in s 11 of the Land Act. In the present case, the appellant did not suggest that the 1970 order declaring Fotuga the common ancestor was the result of fraud. Counsel for the appellant also acknowledged that 1970 orders were never appealed or re-heard or set aside by the lower Court.

...

[53] We agree with this Court’s conclusion in Tongahai v Tafatu that s 47 of the NAA does not confer a general jurisdiction on the Court to determine or cancel title, and we conclude that the Court has no jurisdiction to cancel the determination of a common ancestor unless those orders have been obtained through fraud.

[46] As noted the titling of land is a serious matter. Rather than provide for the cancellation of title the legislation provides by s 52 that every order of the Land Court determining or affecting title shall bind all persons having an interest in that land. Section 52 clearly provides for orders of the Court determining or affecting title to Niuean land being final, unless there is fraud. Section 54 of the Land Act provides that the Court can annul orders obtained by fraud.
[47] In the present case it is clear that there is no issue as to fraud. It is therefore rather difficult to see how the change of common ancestor through the cancelling of Mafa and providing for a new common ancestor can be justified.

Did the 2009 decision cause an injustice?

[48] In the matter before us a decision determining a common ancestor in 1986 has ultimately been changed through a 2009 decision, when the 1986 decision was neither appealed nor reheard.
[49] According to the title for the land block in question, there is a title that declares Mafa as the common ancestor for this block – and that title, and the Court decision declaring Mafa as the common ancestor have never been challenged. That decision is binding on all parties.
[50] The Court of Appeals powers on appeal are purposely wide but not unlimited. A Court of Appeal is confined to directing a retrial or rehearing of the matters on appeal or relevant to the appeal. In this case the Court of Appeal didn’t order a rehearing of a 1986 decision but ordered a hearing for the determination of a new common ancestor – this would have the result of cancelling the current common ancestor, Mafa.

Decision

[51] In our view there have been irregularities of procedure that have caused an injustice. That irregularity in our view has meant that Justice Isaac, while his decision was correct in all senses of his deliberations, proceeded to make an order determining a common ancestor when there was an existing decision of 1986, determining the common ancestor for this land block.
[52] Justice Isaac was being asked to determine a new common ancestor when there has never been an application for rehearing or an appeal of the 1986 decision. By 2009 parties were well outside the time periods for filing either a rehearing application or an appeal application.
[53] The decision of Justice Isaac for all practical purposes purports to cancel the 1986 determination and replace Mafa, the common ancestor for this land block. Given the irregularities we consider it is in the interest of justice to uphold the appeal, to the extent of annulling Justice Isaac’s decision determining a new common ancestor. The common ancestor remains Mafa as determined in 1986.
[54] A leveki magafaoa will need to be appointed. We will leave matters to the Mafa magafaoa to make the appropriate application.

Magafaoa of Mafa

[55] Our decision does not address the issues which appear to have initiated parties’ seeking a determination of a new common ancestor. While we are not fully cognisant of all the issues, there does appear an argument as to the definition of the Magafaoa intended to be ascertained and declared in the 1986 order by reference to Mafa. This court cannot resolve that matter because it was not one of the appeal issues put before us. It is clearly an issue that may need resolving. If there is genuine argument then a proper application should be put before the High Court for determination.

Costs

[56] We are of the view that each party should bear their own costs. But if either party has a different view they have 14 days to file memorandum.

Dated at Wellington New Zealand this 3^rd day of July 2017.

_________________ _________________ _________________
P J Savage CJ C T Coxhead J S F Reeves J

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^[1] App No. 9408/18/6 at Land Minute Book 13 Folio 173-176.

^[2] Land Court Rules 1969 s 78.

^[3] Land Court Rules 1969, s 42(2).

^[4] Karena – Karaka Huarua A and B (2005) 6 Taitokerau Appellate Court MB 260 (6 APWH 260).

^[5] McGechan on Procedure online ed (Westlaw NZ) at CR48.

^[6] Ibid at CR47.01.

^[7] Ibid at CR48.3.

^[8] Herron v Wallace [2016] NZHC 2426 citing Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804.

^[9] Matchitt v Matchitt – Te Kaha 65 [2016] Māori Appellate Court MB 662 (2016 APPEAL 662).

^[10] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.^[11] KBR MacKinder Ltd v Fine Art Productions Ltd HC Wellington A372/84, 17 April 1986.

^[12] Richmond v Heskett Holdings Ltd (1995) 8 PRNZ 533.

^[13] Tafatu v Strickland – Section 12 Block II, Alofi [2016] NUCA: App. No. 10589 (26 September 2016).