Tuhipa v Lipitoa [2019] NUCA 2; Application 11551 (14 March 2019)

IN THE COURT OF APPEAL OF NIUE (LAND DIVISION)
Application No: 11551
IN THE MATTER OF	Part Fugaluga at Hikutavake District
BETWEEN	Dick Hipa Tuhipa Appellant
AND	Mokavesi Jack Willie Lipitoa Respondent

Hearing:	12 March 2019
Court:	Coxhead CJ Reeves J Armstrong J
Appearances:	Mr Tuhipa in person Mrs Lipitoa in person
Judgment:	14th March 2019

DECISION OF THE COURT OF APPEAL

Introduction

[1] On 6 April 2017, Isaac J determined the Magafaoa for Blocks B, F, C, D, A and G, Part Fugaluga, Hikutavake, as set out in provisional plan 10988. He also appointed Leveki Magafaoa for this land.
[2] Dick Tuhipa appeals that decision. The issue in this case is whether the appeal should be upheld.

Background

[3] This land is located in Hikutavake. Five applications were filed in the lower Court seeking to determine the common ancestor, and appoint Leveki Magafaoa, for this land.
[4] Of those applications, three were filed by members of the Gumaka family. They came to an agreement that Gumaka should be determined as the common ancestor for the land, and Niutaha Tahega should be appointed as the Leveki Magafaoa. Dick Tuhipa argued Fulutatao should be determined the common ancestor, and Richard Puivao Rangi Tuhipa appointed as Leveki Magafaoa. Mokavesi Lipitoa argued Puasifa is the common ancestor and Opili Talafasi should be appointed as Leveki Magafaoa.
[5] Isaac J found that the land was given by Puasifa to Gumaka, and that the Gumaka family then occupied the land, without interference, since 1940. Isaac J determined that Puasifa was the common ancestor for the land. He then appointed Opili Talafasi and Niutaha Tahega as Leveki Magafaoa, to recognise the ownership of the land by the Puasifa family, as well as the occupation of the land by the Gumaka family.
[6] Mr Tuhipa appeals that decision.

The case for the appellant
[7] In bringing this appeal, Mr Tuhipa challenges Isaac’s J findings. He contends:

• (a) Puasifa did not own any land on the upper terrace of the hill where Fugaluga is located. She never lived there and instead lived down the hill on the lower terrace of Hikutavake village.
• (b) Puasifa had no authority to gift the land, and there is no evidence that the gift took place.
• (c) There is no documentary evidence that Mrs Lipitoa was legally adopted by Hinavele, who was Puasifa’s adopted daughter. Hinavele’s death certificate shows she had no children. Hinavele was also buried in Namukulu village, south of Fugaluga;
• (d) The evidence from the Puasifa family, as to a banana plantation on the land, is implausible.

[8] Mr Tuhipa accepts that the Gumaka family have occupied the land since 1940 without objection. However, he contends they are entitled to occupy the land as descendants of Fulutatao, and not because of a gifting arrangement from Puasifa.

The case for Mrs Lipitoa
[9] The case for Mrs Lipitoa was presented, on her behalf, by her daughter, and grand-daughter. In response to Mr Tuhipa’s submissions they argue:

• (a) Puasifa had extensive land interests. While she did not live on this land, this is due to her extensive estate, and the gift to Gumaka, not because she did not have interests in this land;
• (b) Mrs Lipitoa was legally adopted by Hinavele. They have been unable to produce documents confirming the adoption as those records were lost during cyclone Heta; and
• (c) There was a banana plantation on the land though they accept it is no longer there.

[10] Mrs Lipitoa otherwise accepts Isaac’s J findings and seeks that the appeal is dismissed.
[11] There was no appearance by the Gumaka family.

Discussion

[12] We note from the outset that all of Mr Tuhipa’s arguments were presented in the lower Court. Isaac J considered Mr Tuhipa’s evidence, and submissions, but rejected them in favour of the evidence, and arguments, from the Puasifa and Gumaka family. While Mr Tuhipa is entitled to bring an appeal against findings of fact, we recognise the advantage that Isaac J had by hearing the evidence first hand. We now turn to consider the specific points on appeal.
[13] Isaac J considered Mr Tuhipa’s claim that Puasifa did not own the land, and that she had no authority to gift the land. He rejected this relying instead on the evidence from the Puasifa and Gumaka families who agreed that the land was gifted from Puasifa to Gumaka. Mr Tuhipa is right that the gifting was not confirmed in writing. This was an oral agreement. Isaac J relied on the evidence from the Puasifa and Gumaka families of the oral agreement between their ancestors. He was entitled to do so.
[14] Mr Tuhipa also argues the Gumaka family occupied the land based on their descent from Fulutatao, who he contends, is the true Magafaoa for this land. However, the Gumaka family do not agree. When giving evidence before Isaac J, they accepted that Puasifa owned the land. They argued that their grandfather, Gumaka, occupied the land based on the gifting from Puasifa. They did not claim occupation based on descent from Fulutatao. Isaac J relied on this when rejecting Mr Tuhipa’s claim. Again, there is no error in this approach.
[15] Mr Tuhipa argues there is no documentary evidence confirming Mrs Lipitoa was adopted by Hinavele, who was Puasifa’s adopted daughter. Isaac J did not make a finding on the adoption issue. Instead he commented:

It would appear that Mokavesi Lipitoa and also Dick Tuhipa have close genealogical links to Puasifa.

[16] Isaac J did not consider it was necessary to make a finding on whether Mrs Lipitoa was legally adopted. He was satisfied the evidence before him established Puasifa as the Magafaoa.
[17] Similarly, Isaac J did not make a finding on whether the banana plantation existed on this land. Ultimately this was not central to the case and Isaac J was entitled to rely on the evidence he did when determining the Magafaoa for this land.
[18] As noted, the issues in this appeal, were all raised in the lower Court. Isaac J considered the evidence and arguments put forward. He weighed the evidence and made findings of fact determining the issues before him. We also acknowledge that as he heard the evidence, and questioned the witnesses, he was best placed to assess that evidence and to make those findings. While Mr Tuhipa may not agree with those findings, that does not demonstrate that the findings are wrong, or that the decision of the lower Court should be overturned. It is difficult to escape the conclusion that Mr Tuhipa is attempting to rerun his case because he does not agree with the outcome in the lower Court.

Decision

[19] The appeal is dismissed.

Pronounced at Alofi in the Government Building on the 14^th day of March 2019.

C T Coxhead	S F Reeves	M P Armstrong
CHIEF JUSTICE	JUSTICE	JUSTICE