Tuhipa v Hipa [2019] NUCA 3; Appplication 11253 (13 March 2019)

IN THE COURT OF APPEAL NIUE (LAND DIVISION)
Application No. 11253
IN THE MATTER OF		Part Matapa Provisional Plan 9388, Hikutavake District
BETWEEN		DICK HIPA TUHIPA And NIUTAMA TUHIPA Appellants
AND		DICK HIPATAMA HIPA And MORRIS TAFATU Respondents
Hearing:	12 March 2019
Coram:	Coxhead CJ Reeves J (Presiding) Armstrong J
Appearances:	Mr Tuhipa in person Mr Toailoa for the respondents
Judgment:	13 March 2019

DECISION OF THE COURT OF APPEAL

Copies to: all parties
Introduction

[1] This is an appeal by Dick Hipa Tuhipa, and Niutama Tuhipa against a decision of the High Court dated 20 March 2015, where the following orders were made:^[1]

1. Declaring Taoafe to be the common ancestor for the land Part Matapa, Provisional Plan No. 9388, Hikutavake District, containing approximately 2.1130 hectares (“the land”); and
2. Appointing Morris Tafatu and Richard Hipa as the leveki Magafaoa for the land.

[2] Mr Tuhipa applies for an order annulling the decision of the lower Court on the basis that the lower Court was wrong in its determination of common ancestor and leveki magafaoa.
[3] The issue in this case is whether the appeal should be upheld.

Case for the Appellant

[4] The Notice of Appeal dated 16 April 2015, raises a number of matters in support of the appeal, but the substantive issues argued by Mr Tuhipa at the hearing were:

1. That the lower Court was unfairly influenced in its decision by the support of the Hikutavake community for the respondents;
2. That the lower Court wrongly concluded that Sifahemotu had made a will recording her lands as including Matapa and Talava;

100. That the lower Court was wrong in finding that the Tuhipa family belong to the top terraces at Vaha, and not Matapa.

[5] In relation to the first matter, Mr Tuhipa says that the lower Court’s decision was heavily based on the community support of the Taoafe descendants. He says it is unfair for the Court to give consideration to the views of the wider Hikutavake community, when many of these people have no blood ties to the land.
[6] Concerning the will of Sifahemotu, Mr Tuhipa says that during the hearing, Justice Isaac agreed that the document produced was not a will, but then the decision stated it was a will. Mr Tuhipa says this was an incorrect finding which gave undue weight to that document.
[7] Mr Tuhipa also disputes the lower Court’s conclusion that the Taoafe line is from the coastal area and the Tuhipa family from Vaha. While he acknowleges that his family owns land at Vaha, he says it is well-known that they have always been established in the lower terraces.

Case for the respondent

[8] Mr Toailoa appears for the respondents. His overall submission is that the appeal raises no valid grounds, and that the appellants are simply refusing to accept the lower Court’s decision. He submits that the appeal should be dismissed.
[9] Concerning Mr Tuhipa’s submission that the lower Court was swayed by the views of the local community, Mr Toailoa submits that the relevant passages of the lower Court decision refer only to the appointment of leveki magafaoa, and not determination of title.^[2] He submits it was appropriate for the Court to comment on wider support for prospective leveki magafaoa given Matapa and Talava are significant sites both for the local community and nationally.
[10] Mr Toailoa also submits that the reference to the will of Sifahemotu in the decision is only a summary of counsel’s submission, and is not a finding by the lower Court.^[3]
[11] Finally, Counsel submits the lower Court’s finding that the Tuhipa family have land and close genealogical ties to Vaha is based on the findings of the 2008 High Court decision concerning title to Section 2, the land immediately adjacent to this land.^[4]

The law

[12] The relevant law, sections 10 – 14 of the Niue Land Act 1969, is set out in the lower Court decision, and neither party took any issue with these provisions or their application.

Discussion

[13] The issue before this court is whether the lower Court erred when it found Taoafe was the common ancestor, and appointed Morris Tafatu and Richard Hipa as the leveki magafaoa.
[14] The lower Court made this determination from competing applications seeking determination of title and appointment of leveki.
[15] Justice Isaac noted the core disagreement is that the Tuhipa claim to the land is based on the paternal line of their genealogy and the Hipa claim is based on the maternal line. He referred to the 2008 High Court decision concerning the contested title to Section 2 Matapa, where the Court found that the Taoafe line is from the coastal area and the Tuhipa line from Vaha.^[5] At paragraph [53] of the decision he stated:^[6]

“Therefore while both claims have substance, when all the evidence is considered, it is the Hipa claim which I consider has more merit and as set out in their evidence there is a direct descent line from Taoafe to the current applicants. This genealogical link is also supported by constant occupation of this land from Taoafe to the present applicants.”

[16] On that basis, after weighing the evidence before him, Justice Isaac determined that Taoafe is the common ancestor to this land.
[17] Having considered the evidence and the submissions of Mr Tuhipa, as well as Counsel for the respondents, we find no error in the lower Court’s decision.
[18] The matters raised by Mr Tuhipa do not convince us that the lower Court made any mistake in its assessment of the evidence in relation to these applications, or that it came to the wrong conclusion. In our view the appellant is merely seeking to re-run his unsuccessful case at first instance.
[19] The evidence and record of the Court conclusively shows that Taoafe was born, lived and was buried at Matapa. The land then passed to Sifahemotu also born and buried at Matapa, then to Rousalina Hipa, and then to the respondent, Dick Hipa.
[20] Consequently, the appeal is dismissed.
[21] The respondents seek costs, and leave is granted for Mr Toailoa to file a memorandum as to costs within 30 days from the date of this decision. Mr Tuhipa then has 30 days to file in response.

Pronounced at 8.30 am in Niue on the 13^th day of March 2019.

CT Coxhead CHIEF JUSTICE

SF Reeves JUSTICE

MP Armstrong JUSTICE

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^[1] Tuhipa v Hipa - Part Matapa, Provisional Plan No 9388, Hikutavake District [2015] NUHC 3 (20 March 2015).
^[2] Above n 1, at [54]-[56].
^[3] At [10].
^[4] Tuhipa v Hipa - Part Matapa, Section 2, Block 1, Hikutavake District [2008] NUHC 3 (8 October 2008).
^[5] Above n 1, at [47].
^[6] At [53].