Paka, Re [2018] NUHC 3; Land Division 11519 (23 August 2018)

IN THE HIGH COURT OF NIUE
(LAND DIVISION)

App No. 11519

IN THE MATTER OF Section 45 of the Niue Amendment Act (No 2) 1968

AND

IN THE MATTER OF the land known as PART MASIKESIKE, FUPIU MUTALAU DISTRICT

0. HARE HARESIMELIKA PAKA

Applicant

App No. 11569, 11570

IN THE MATTER OF Section 45 of the Niue Amendment Act (No 2) 1968

AND

IN THE MATTER OF the land known as PART MASIKESIKE, FUPIU MUTALAU DISTRICT

0. JOSEPH FAKALOGOTOA

Applicant

AND the MAKAEA FAMILY

Respondent

Hearing: 14 November 2017
(Heard at Alofi)

Appearances: Dr Paka, in person
I Togatule for Mr Fakalogotoa

B Jessop for the Makaea family

Judgment: 23 August 2018

DECISION OF JUSTICE S F REEVES

Introduction

[1] On 5 September 2016, Justice Coxhead determined competing applications to determine title to Part Fupiu/Masikesike (also known as Matiketike) and to appoint leveki magafaoa.^[1] The applicants in the original proceedings were Tony Aholima (Mr Aholima) and Matavaine Makaea (Mrs Makaea) among others.
[2] Joseph Fakalogotoa (Mr Fakalogotoa) and Dr Hare Paka (Dr Paka) have filed separate applications for rehearing. These were received on 14 September 2016, and 29 November 2016 respectively. The applications contain similar issues, and I heard both together.

Background

[3] The original application to determine title for eight provisional blocks was heard in March 2015, in two parts before Coxhead and Isaac JJ respectively.^[2] Immediately following the second hearing, Mrs Makaea and others filed a letter with the Court seeking clarification on the matter of the common ancestor for two of the blocks.
[4] Justice Coxhead directed that a copy of the letter be distributed to the interested parties for submissions to be filed in response within one month. Two submissions were received, including one from Dr Paka and Mr Aholima dated 14 April 2015.
[5] In his decision, Coxhead J appointed separate common ancestors for each block on the land but made no determination on appointment of leveki magafaoa. He commented:^[3]

In terms of leveki mangafaoa, new applications will need to be filed with the Court. These new applications should look to comply with s 14 of the Land Act 1969. I would anticipate that the mangafaoa of the common ancestors for the each of the Blocks will need to discuss and propose who the leveki magafaoa for these Blocks should be.

[6] Mr Fakalogotoa’s original application seeks a rehearing and partition in relation to Blocks 1B and 5. At the hearing his counsel also sought rehearing for Block 6. Mr Fakalogotoa alleges that he was unable to properly bring his family’s interests in relation to these blocks to the Court’s attention, and has been unfairly affected.^[4]
[7] Both applicants allege that Mrs Makaea misrepresented her own intentions to apply for title, when she sought their support to oppose Mr Aholima’s plans to title the land and build a motel. Mr Fakalogotoa says that by the time he and his family realised Mrs Makaea had applied to title land they regarded as theirs, that it was too late to attend the hearings to present their own evidence.
[8] Dr Paka seeks a rehearing in relation to Blocks 3 and 6. In addition to the matter raised above, he also states that Court should not have allowed the Makaea family to change their agreement for Kemohetoa for Block 6, to Koukouiki.
[9] Mrs Makaea was not able to attend the hearing, and family member Mr Birt Jessop spoke on her behalf. Mr Jessop denies there was any intention to mislead, and there had been attempts to engage Mr Fakalogotoa concerning boundaries.
[10] I also directed that Mrs Makaea be given the opportunity to provide written submissions within two-weeks of her receiving the transcript of proceedings. The transcript and submissions were sent to Mrs Makaea in New Zealand on 17 November 2017. Despite email and telephone follow-up from the Court, no response has been received from Mrs Makaea on the matter.

Issues

[11] The issue to be determined is whether the Court should grant the applications for rehearing.

Submissions of parties

Submissions of Dr Paka

[12] Dr Paka’s application for a rehearing dated 25^th November 2016 states the main reason for the rehearing is that his family in New Zealand were “unfairly deceived” by Mrs Makaea into supporting her application and, on this basis, did not attend Court to provide their own evidence.
[13] A further submission filed by Dr Paka dated 4 April 2017 states that Block 6, the piece of land given for Koukouiki’s house, was not a permanent gift, and that Aholima’s brother, Iosefa strongly objected at the time. This is the reason Iosefa’s children object to Koukouiki Makaea as common ancestor for Block 6.
[14] Dr Paka also submits that despite all parties agreeing on Kemohetoa as a common ancestor for Block 6 in the original hearing, the Makaea family made further submissions to Judge Coxhead after the hearing, that Koukouiki Makaea should be the common ancestor for Block 6 of the land.
[15] Dr Paka further submits that the Judge ought to have given more weight to the principle of “give and take”. Specifically, that as the Makaea family were to receive Block 2, they ought to have returned Block 3 to Dr Paka and his family. In support of this submission, Dr Paka noted that kitchen foundations belonging to his family exist on Block 3.

Submissions for Mr Fakalogotoa

[16] Mr Fakalogotoa’s application for rehearing dated 15 September 2016, seeks a rehearing of Blocks 1B and 5 on grounds that the foundation of his late father Iosefa’s house is located at the front of Block 1B and near the boundary of Block 5.
[17] Paragraph 4 of his application states:

I can confirm the findings in favour of Kemohetoa(f) as the common ancestor for the said Blocks 1B and 5. I note the appointment of Leveki Mangafaoa for all the sections in Fupiu/Masikesike has yet to be determined.

[18] The application goes on to seek a partition of Block 5 and part of Block 1B, to create an enlarged Block 5 for the benefit of Iosefa’s children, surrounding the foundation of his former house, with Iosefa as common ancestor. This is also set out in the memorandum of counsel filed by Mr Togatule, dated 15 September 2016.
[19] Written submissions filed by Mr Tongatule prior to the hearing, take a wider approach, submitting that his client also seeks the return of Block 6 in addition to a partition of Blocks 1B and 5.
[20] Counsel submits that Mr Fakalogotoa brings his application as an interested person in the matters. Although he was not present at the original hearing, he attempted to communicate his interest in the proceedings to the Court. It is submitted that because he was unable to bring his interests to the attention of the Court, they were not appropriately considered and he has now suffered an injustice. It is submitted that Mr Fakalogotoa sent letters to the Registrar in July and November of 2017 but it is not clear when those arrived at the Court as no response was received.
[21] Furthermore, despite two hearings being held in March 2015 on the matter, Mr Fakalogotoa submits he did not receive notice of the proceedings and wasn’t afforded interested party status. Mr Fakalogotoa’s father had interests in the land at the centre of the original hearing and he submits that the lack of response by the Court means he was unable to bring his case for a stake in that land.
[22] Counsel submits that while Mr Fakalogotoa left Niue at a young age, he retains good knowledge of the lands at Masikesike, furthermore, the foundations of the house belonging to the applicant’s father are still evident on the land. So too are the foundations of his grandfather’s house. These foundations have been present on the land since before the 1959 cyclones and predate the building of the Makaea house. Counsel submits that the presence of foundations is a good indication of occupation.
[23] It is submitted that the survey of internal boundaries conducted for the original hearing did not account for the two sets of foundations, as such land has been allocated away from Mr Fakalogotoa. The area now granted in occupation to the Makaea family was cleared by Mr Fakalogotoa’s father and he recalls playing there as a child.
[24] Mr Fakalogotoa concedes that the Makaea family is descended from the same genealogy as the Fakalogotoa family and Kemohetoa family (Kemohetoa being the applicant’s gradfather). However, he submits that Mrs Makaea, wife of Koukouiki Makaea does not share that genealogy. She married into the Makaea family and has been actively campaigning on behalf of her immediate family. It is submitted that Mrs Makaea’s seeking of extra land is unnecessary.
[25] The applicant seeks the return of Blocks 1B, 5 and 6 of the land as these were occupied by his family prior to the 1959 cyclones. Mr Fakologotoa notes that he has no claim in and seeks no claim in section 4, which was occupied by the Makaea family since 1963.
[26] Mr Fakalogotoa alleges that Mrs Makaea mislead him and other members of his family when she sought their consent for the land to be surveyed. While under the belief that the survey was in support of construction of a motel by Mr Tony Aholima, it is submitted that the survey was in fact used by Mrs Makaea to have title transferred to her husband.
[27] It is further submitted that the Makaea’s continue to live in Auckland.
[28] In addition to the rehearing, the applicant seeks orders partitioning Blocks 1b, 5 and 6 of the land and combining the titles. He also seeks that Iosefa Fakalogotoa be named the common ancestor and Tony Aholima the interim leveki magafaoa.

Submissions for the Makaea family

[29] Although Mrs Makaea was not in Court to respond to the allegations made against her, Mr Birt Jessop appeared on her behalf.
[30] Mr Jessop submits that Dr Paka and his family filed applications for survey and determination of title in relation to Block 6 of the land without consulting the Makaea family. His intention, it is submitted, was to conduct business on the land without having to consult the other families. The actions of Mrs Makaea were only in response to those initiated by the applicants. The applicants undertook no consultation with the Makaea family when they were proposing surveying the land.
[31] These applications were brought despite the Makaea family home being located on Block 6 and occupied by Mr Jessops children. Mr Jessop submits that the improvements made by his family to the home and the free labour has been of benefit to the applicants. However, Mr Aholima had made them feel unwelcome in that home by using their amenities and threatening those who currently occupy the house.
[32] In response to the alleged lack of consultation, Mr Jessop submits that the Makaea family called a meeting of owners to discuss title to the land. He submits that Tony Aholima, who had been involved in bringing the applications for survey and title, refused to attend the meeting, despite members of the Makaea family flying from New Zealand for it.
[33] In relation to the further submission of the Makaea family, they felt they had misunderstood the meaning of common ancestor at the original hearing. On learning the legal implications, following the hearing, they filed further submissions to have the common ancestor changed from that agreed in court to Koukouiki Makaea.
[34] Mr Jessop submits that in fact, the Makaea family did inform the applicants of the land issues and attempted to engage them in conversation about what should be done. Mr Jessop spoke personally to Mr Fakalogotoa about the land and the foundations of his father’s house, going so far as to invite Mr Fakalogotoa to give his views on the matter while they viewed the land. He submits that Mr Fakalogotoa refused.
[35] In response to the submission the Mrs Makaea had mislead the parties about Mr Aholima’s intended motel, Mr Jessop noted Mr Aholima was indeed using the land for his tourism business. While not constructing a motel, Mr Aholima had intended to build a shelter for tourists on the disputed foundations. It is submitted that Mrs Makaea was not lying nor did she intend to mislead.
[36] The respondents are opposed to the nomination of Tony Aholima as leveki magafaoa for the land. The respondents submit that Mr Aholima was not adopted by the elder Mr Aholima in his lifetime but by his wife after the elder Mr Aholima had passed. As such, he is not properly related to the land and has no right to the position of leveki magafaoa.
[37] The respondents submit that the applicants suffered no injustice under the original hearing. The Makaea family endeavoured to preserve the section for Mr Fakalogotoa where his father’s foundations are located and the only changes were to straighten or correct boundaries.
[38] Finally, the respondents nominate Birt Jessop for leveki magafaoa and Dr Paka for second in accordance with their earlier submissions against the nomination of Mr Aholima.

Law

[39] Section 45 of the Niue Amendment Act (No 2) 1968 (the NAA) sets out the provisions for rehearing:

45 Rehearings

(1) O160;On the application ofpany person interested, the Land Court may, if it thinks fit, grant a rehearing of any matter either wholly or as to any part thereof.

(2) Onsuch ring ourt mart may emay either affirm, vary, or annul its fits former determination, and may exercise any jurisdiction which it might exercised on the original hearing.

(3) When a rehearin been so grao granted,nted, the period allowed for an appeal to the Land Appellate Court shall not commence to run until the rehearing has been disposed of by a final order of the Court.

4) Any such rehearing ring may be granted on such terms as to costs and otherwise as the Court thinks fit, and the granting or refusal thereof shall be in the absolute discretion of the Court.

(5) No order shall be ried or a or annulled at any time after the signing and sealing thereof.

[40] An application of rehearing under the above s 45 must be filed within 14 days of the order or determination in respect of which it is sought.^[5]
[41] The Niue Court of Appeal has determined a rehearing may be granted only in the following circumstances:^[6]

• (a) Where further material of a credible nature has been discovered which was not available at the original hearing;
• (b) Where there has been a breach of process or procedure which may have disadvantaged one of the parties to the extent that there has been a miscarriage of justice; and
• (c) Where judicial error is involved, a party is entitled to a retrial if the result of the error is a fundamental miscarriage of justice.

[42] Grant of a rehearing remains subject to the absolute discretion of the Court, even when one of the above criteria is met. It is not an opportunity to relitigate. The fundamental principle for consideration is whether there has been a miscarriage of justice that justifies granting a rehearing.^[7]

Discussion

Dr Paka’s application

[43] Dr Paka’s application for re-hearing dated 29 November 2016 was not filed within the 14 days as required by Rule 30 Niue Land Court Rules 1969, and is out of time.
[44] The application will be dismissed on that basis; however, I briefly address the two matters he has raised.
[45] Dr Paka objects to Mrs Makaea and her family being allowed to change the common ancestor they had agreed to during the hearing for Blocks 5 and 6, from Kemohetoa to Koukouiki Makaea.
[46] In my view, the process followed by Justice Coxhead, gave all interested parties an opportunity to consider the matter raised by the Makaea family and to file written submissions in response. The procedure was consistent with natural justice and convenience, and I’m satisfied that other parties were not disadvantaged to the extent of any miscarriage of justice.
[47] Dr Paka also argues that because the parties had agreed that the Makaea family would receive Block 2, Justice Coxhead should have given more weight to the “give and take” principle, and returned Block 3 to Dr Paka and his family. “Give and take” is not a legal principle that I’m aware of, and is perhaps better described as a negotiation technique. Because the parties did not agree about Block 3, it fell to Justice Coxhead to determine the common ancestor based on his assessment of evidence and the law. There is no substance to this allegation.

Mr Fakalogotoa’s application

[48] The issues to be determined are:

• (a) Has fresh evidence arisen that was not available at the original hearing?
• (b) Has there been a breach of process to the disadvantage of one of the parties?
• (c) Was the original decision affected by judicial error to the disadvantage of one of the parties?

[49] Mr Fakalogotoa states he should have been advised of the hearing in March 2015, so that he could present evidence about his family’s claims, and suggests the Court’s failure to notify him is a breach of process which has resulted in injustice.
[50] His affidavit refers to correspondence he sent to the Court regarding his grandfather’s interests. But this was only received by the Court Registry 2 days prior to the hearing on 23 March 2015, and as he says in his affidavit, his letter was too late.^[8] Mr Fakalogotoa had not previously filed any applications with the Court, or otherwise notified his interests in the blocks, such that the Court Registry would be aware that he was an interested person. Other correspondence Mr Fakalogotoa refers to in his affidavit was sent after the hearing date, and is not relevant to his allegation that the Court failed to notify him of the hearing.^[9] I conclude there is no substance to the allegation of breach of process.
[51] There is also the allegation that Mrs Makaea misrepresented her request for support, such that the interests of Mr Fakalogotoa’s family were prejudiced by being unable to present their evidence. In response, Mr Jessop stated that the Makaea family did inform Mr Fakalogotoa about land issues, but that he refused to talk about it. With conflicting accounts, I can only draw speculative conclusions about what might have happened. However, the issue is whether the Court was prevented from receiving material evidence that was not available at the hearing.
[52] At the hearing, the Court received evidence of the former occupation of Iosefa from Koukouiki Makaea, Matavaine Makaea, and Dr Paka, all of whom acknowledged his connection to the land as well as his former house. This evidence was among the matters weighed up by Justice Coxhead in making his decisions about common ancestors for the blocks. I am not convinced that the Court would necessarily have reached a different decision concerning Blocks 1B, 5 and 6, even had Mr Fakalogotoa attended the hearing to give his evidence.
[53] Mr Fakalogotoa’s original application accepts Kemohetoa as the common ancestor for Blocks 1B and 5, and signals his intention to apply for partition following appointment of leveki. As a member of the magafaoa of Kemohetoa, Iosefa’s interest is still intact, and that is the appropriate way for the applicant to now progress his claim to partition a block for the descendants of Iosefa.
[54] I am satisfied there is no fresh evidence of Iosefa’s interest which was not broadly available at the original hearing. I am also satisfied that there is no miscarriage of justice that would warrant granting this application.

Decision

[55] The applications for re-hearing are dismissed.

Dated at Wellington this 23^rd day of August 2018.

_________________
S F Reeves
JUDGE

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^[1] Aholima – Part Fupiu/Masikesike (2016) Land Minute Book 20 Folio 111 (5 September 2016)

^[2] Justice Coxhead initially heard this matter on 24 March 2015 following which it was adjourned for the parties to meet. Subsequently the applications came back before Justice Isaac on 26 March 2015.

^[3] At [94].

^[4] 15 September 2016

^[5] R 30, Land Court Rules 1969.
^[6] Koligi v Iakopo [2017] NUHC 1; Land Division 11213 (12 October 2017) at [26].

^[7] Tahega v Kapanga – Part Limu Namukulu CA Niue, App 11346, 17 August 2016.

^[8] Affidavit of Joseph Fakalogotoa, dated 7 November 2017, at paragraph 24

^[9] At paragraphs 31 and 32