Palahetogia v Poiafati [2024] NUHC 2; Application 00167 of 2024 (9 November 2024)

IN THE HIGH COURT OF NIUE
(LAND DIVISION)

Application No: 00167/2024

UNDER Sections 44(2) and 47(e) Niue Amendment Act (No. 2) 1968

BETWEEN SHIELD UTALI PALAHETOGIA

APPLICANT

AND MELEAMINA POIAFATI

RESPONDENT

Date: 9 November 2024 (Aotearoa New Zealand Time)

JUDGMENT OF CHIEF JUDGE C T COXHEAD

Introduction

[1] On Friday 8 November 2024 at 3.53pm (Aotearoa New Zealand time) I received an email with an injunction application.

[2] While the application does not state that the matter is urgent, the email from Court staff noted that the body of Mr Poiafati will be arriving in Niue on Friday and the funeral will take place on Saturday the 9 November 2024.

The application

[3] A brief application was filed along with:

1. The Certificate Title Volume N 18 Folio 26.
2. Court Minutes of a hearing of 12 March 2023. In that case the applicants were Punaaiki Togiamua and Togiatolu Togiamua in regard to lands Pt Lalopua, Lakepa.
   

[4] I was also advised that service on the respondent was being completed.

[5] On Friday 8 November I emailed the Court seeking confirmation that I had all the documents that had been filed so I could proceed to make an urgent decision.

[6] On Saturday 9 November (Aotearoa New Zealand Time) I received an email with a letter from the respondent.

Decision

[7] This application clearly lacks evidence. There is no sworn affidavit setting out the evidence or statements the applicant relies on to support her application. There is no signed statement. There are no signed letters. There are no statements or letters from Leveki.

[8] The application states “To stop the burial on the land”. But there is no evidence or even a statement saying where the applicant thinks the burial will occur.

[9] There is not even evidence from the applicant that Mr Poiafita will be buried in Niue. That required evidence has now been provided by the respondent in a signed letter confirming that Mr Panama Fakalofa Poiafita will be buried within the section which is titled to their Magafaoa and not on the section where the applicant has interest.

[10] The applicant has filed a certificate of title for the land. The Court presumes that this is the land in question - but that is a guess given there is no evidence to say that the respondent will be buried on this land.

[11] Putting that issue to the side I note that the certificate of title for Part Lotouho, Lakepa records Leveki for Mougapa’s house as Togiakula and Leveki for Fuasea’s house as Konevele and Pulone. Evidence in the form of a statement from Togiakula or Konevele or Pulone would have been helpful. The Court does not have any evidence from any of those Leveki.

[12] To order an injunction based on the information before the Court would require the Court to make a number of assumptions.

[13] Given the lack of evidence and the clear confirmation from the respondent that Mr Panama Fakalofa Poiafita will be buried within the section which is titled to their Magafaoa and not on the section where the applicant has interests, I dismiss the application.

[14] The application is dismissed.

Dated at Rotorua, Aotearoa New Zealand this 9^th day of November 2024 (Aotearoa New Zealand Time).

_______________________
C T Coxhead

CHIEF JUSTICE