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Ikimotu v Toamio [2019] NUCA 4; Application 11639 (1 July 2019)

IN THE COURT OF APPEAL NIUE
(LAND DIVISION)

Application No: 11639

IN THE MATTER of section 14 of the Land Act 1969

AND

IN THE MATTER on the land known as Part Maiehi, Block II, Plan No. 655, Avatele

BETWEEN Faleaoga Kalikupa Ikimotu

Appellant

AND Poitoatama Toamio (also known as Poitoa Toamio)

Respondent

Hearing: 14 March 2019

Court: Isaac J (Presiding)
Coxhead CJ

Armstrong J

Judgment: 1 July 2019

DECISION OF THE COURT OF APPEAL

Introduction

[1] This is an appeal by Faleoga Kupa Ikimotu and Laualila Akaneti Kapisiga Sakalia against a decision of Judge Reeves dated 14 November 2017.
[2] That decision granted a partition application of Poitoa Toamio in respect to 357m2 Part Maiehi, Block II, Avatele set out in the provisional plan of application no 11120. It also appointed Poitoa Toamio as the Leveki Magafaoa for this land.
[3] The appeal was heard at Niue on 14 March 2019 with Mr Maru Talagi representing the appellants and Poitoa Toamio, Laualila Toamio, and Sandra Toamio Komelio present for the respondents.
[4] After hearing the submission of the parties, the Court allowed the appeal in terms of s 78(b) and annulled the order of Judge Reeves dated 14 November 2017. We now set out our reasons for this decision.

Reasons for allowing Appeal

[5] The order complained of created by partition, a land block of 357m², being Part Maiehi Block II, Avatele as recorded in the provisional plan of application 11120 which is below:

[6] It is immediately obvious when viewing the plan for the partition that the Northern boundary of the land cuts through a house owned by Mr Ikimotu.
[7] Submissions were made at the hearing of the appeal that the respondent was granted an occupation order on 19 May 1980 over Part Maiehi, Block II, plan no. 655.
[8] This is recorded on CTN 77, Folio 07 and it clearly shows the occupation order in favour of Mr Ikimotu and also a charging order registered against the title which secured a loan to enable the building of his house.
[9] The partition order complained of not only cuts through Mr Ikimotu’s house but also ignores the existence of the occupation order and the charging order registered against the title.
[10] This situation was conceded by the respondents, but they argued that Mr Ikimotu was not entitled to the land over which his occupation order was granted. The merits of that argument are however irrelevant to the present appeal and it is noted that when the occupation order was granted to Mr Ikimotu, there was no rehearing or appeal of that order and it has stood for approximately 30 years.
[11] As counsel for Mr Ikimotu points out, s 52 of the Niue Amendment Act (No 2) 1968, provides that all orders of the Court affecting titles shall bind all persons having any interest in that land. Therefore, the prior occupation order in favour of Mr Ikimotu over this land binds all those who deal with the land.
[12] This provides certainty and stability of title created by Court orders and enables those persons holding a Court order in their favour, the ability to develop and utilise land without fear of interruption.
[13] Therefore, it is clear that the partition order complained of cannot stand because of the prior occupation order registered against the title, and we now confirm our order annulling the order of Judge Reeves of 14 November 2017.
[14] There has been no application for costs, so costs will lie where they fall.

Pronounced at Gisborne, New Zealand this 1^st day of July 2019

W W Isaac C T Coxhead M P Armstrong
JUSTICE CHIEF JUSTICE JUSTICE