Paka v Seu [2019] NUHC 5; Applications 11419, 11420, 11545 and 11546 (4 July 2019)

IN THE HIGH COURT OF NIUE
(LAND DIVISION)

Application No.s :11419, 11420,
11545, 11546

IN THE MATTER of Sections 10 and 14 of the Land Act 1969

AND

IN THE MATTER of the land known as Part Fakafaleloto Toi district

BETWEEN HARE HARESIMELIKA PAKA

Applicant

AND MOKA TALENI SEU

Respondent

Hearing: 5^th April 2017, 14^th November 2017 and 19^th March 2018
Appearances: Howard Lawry for Mrs Taleni Seu
Dr Paka in person

Judgment: 4 July 2019

DECISION OF JUSTICE W W ISAAC

Introduction

[1] The applications before the Court are as follows:

• (a) Applications dated 27 June 2016 by Dr Hare Haresimelika Paka (Dr Paka) to determine title of Part Fakafaleloto, Toi district and determine Fakalito as the common ancestor and to appoint Audrey Paka Panama as Leveki Magafaoa.
• (b) Applications dated 29 May 2012 by Moka Seu Taleni to determine title of Part Fakafaleloto, Toi district and determine Togiavale Logolea as the common ancestor and to appoint Moka Seu Taleni as Leveki Magafaoa.

[2] The applications were before the Court on 5 April 2017, 14 November 2017 and 19 March 2018. On 19 March 2018 the applications were adjourned to enable final submissions to be filed by the parties. This has now been done and submissions of the parties are set below.

Submissions for Dr Paka

[3] Dr Paka submits that the common ancestor to this land is Fakalito who adopted Dr Paka’s father, Hare Paka. The adoption was confirmed by the Court on 24 September 1924.^[1]
[4] Hare Paka lived on the land with his adoptive parents. They cultivated the land, planted coconuts and other crops on it. After the cyclones of 1959 and 1960, Hare Paka allowed Ikitolu and Tuatagaloa to build a house on his land. Mr Paka also allowed Tuatagaloa to be buried on the land.
[5] Dr Paka states that he has been familiar with the land since he was a child and that he learned about Fakalito’s land and its boundaries from his father. When Dr Paka was a child, coconuts were cultivated on the land and he would collect them.
[6] Hare Paka also gifted land to Mutalau to establish a village as well as land to the village of Toi for a cricket pitch. The land is still used for cricket now.
[7] Dr Paka submits that although the land was given for housing after the hurricane that does not mean the current generations can claim ownership. Hare Paka’s ownership rights continued as evidenced by him acting as guarantor for a house after the occupier moved to New Zealand.
[8] Dr Paka’s status as a member of the Magafaoa has been recognized by Dion Taufitu. Mr Taufitu has previously sought Dr Paka’s permission to plant on the land and to use a house under Hare Paka’s name for village council purposes.
[9] Dr Paka submits that as he and his siblings are the only descendants of Fakalito and therefore the rightful Magafaoa to the land. Fakalito is descendant from Malamasifa, whom Dr Paka submits is the true ancestor. He rejects the respondent’s submission that the ancestor is Togiavale.
[10] In keeping with the survey, Dr Paka submits there are only two graves on the land; those of Ahotaha, Tuagatagaloa, and Tuuni. Furthermore, pito have only been buried on the land since 1962 when the hurricane houses were completed. As Mrs Taleni Seu was born in 1961 her pito could not be buried on the land.
[11] In terms of building on the land, Dr Paka asserts that there are no foundations or evidence of the alleged toilet blocks. Kaipaula lived across the road from the land, his house was there and he is buried there. Dr Paka submits that Mrs Taleni Seu’s ancestors lived over the northern boundary of the land and not on the land itself. They were invited to build on the land following the cyclone but this does not give them ownership.

Submissions for Mrs Taleni Seu

[12] Counsel for Mrs Taleni Seu submits that the Common Ancestor to this land is Togiavale Logolea of whom Mrs Taleni Seu is a descendant through her adoptive parents, Ahotaha Tuagatagaloa and Niuniu Logolea.
[13] Under Section 99 of the Niue Amendment Act 1968, every adoption order made in Niue has the same operation and effect as an adoption order made under the Adoption Act 1955. Although counsel accepts that Hare Paka was the son of Fakalito, and that Fakalito is connected to the land, according to s 16(2) (b) of the Adoption Act 1955, Dr Paka ceased to be the child of Hare Paka when he was adopted therefore has no connection to the Common Ancestor Fakalito by blood or adoption.
[14] Mrs Taleni Seu was also adopted however; her adoptive parents are descendants of the proposed Common Ancestor Togiavale Logolea.
[15] Mrs Taleni Seu grew up on the land with her mother and grandparents. Mrs Taleni Seu also has her house which was originally built by her mother Ahotaha who is buried on the land. The house was being renovated by Mrs Taleni Seu before the injunction was granted. Counsel submits that Mrs Taleni Seu has strong ties to the land as her family are buried on the land and as per Niuean custom, her pito is also buried on the land.
[16] Counsel submits that the magafaoa of the land supports Mrs Taleni Seu to be the leveki.

Law

[17] Under sections 10, 11, and 12 of the Niue Land Act 1969 the Court is required to determine title according to the customs and usages of Niuean people. In doing so the Court shall have regard to the ancestors, cultivations of the land and proof of occupation.

Discussion

[18] When considering the evidence before the Court it would appear that Mrs Taleni Seu is attempting to question Dr Paka’s claim on the basis that Dr Paka was adopted out of the magafaoa connected to the land and therefore has no claim. In my view this is not relevant to the claim, that Fakalito was the common ancestor.
[19] There is no dispute that Fakalito is connected to the land. When one considers the genealogies presented, the Fakalito connection as proposed by Dr Paka is considerably older then that proposed by Mrs Taleni Seu.
[20] Further there was no evidence raised by Mrs Taleni Seu which brought into question the timing of events. Namely that Hare Paka had use and control of the land, that the land was given to the Seu Magafaoa to build following cyclones in 1959 and 1960.
[21] The authority of the Paka family continued with the granting of permission to Dion Taufitu to plant crops.
[22] Mrs Taleni Seu’s evidence does not contain the same authority. It would appear the Seu magafaoa lived on the land only after it was granted to them for building after the cyclones. This does not have the same depth of use and occupations as Fakalito and Hare Paka. It also does not give them the ability to usurp the authority of the magafaoa who gave them permission to build.
[23] As a result, I find that the common ancestor is Fakalito. In relation to the appointment of Leveki Magafaoa, I am satisfied that Audrey Paka Panama has the support of the Magafoa of Fakalito and lives in Niue. I accordingly appoint her as Leveki Magafaoa for this land.

Dated at Wairoa this 4^th day of July 2019

Justice W W Isaac

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^[1] Adoption Minute Book No 1A Folio 131