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Koligi v Iakopo [2017] NUHC 1; Land Division 11213 (12 October 2017)

DECISION OF REEVES J

Copies to:
Romero Toailoa, c/- C Tongahai, Lamea, Alofi, Niue, toalaw@outlook.com; toalaw22@gmail.com.
Kahealani Hekau, Hekau Attorneys At Law, Fakaleaina, Alofi South, Niue Island.

Introduction

[1] This decision deals with applications relating to Sections 1 to 3 of Block II, Alofi District (Part Tukaiavi). The applicants, as descendants of the common ancestor, seek cancellation of the surveys relating to each section and for a re-survey and re-partition of the areas, on the basis of the fair entitlements of each remaining branch of the mangafaoa. In addition, they seek a change of the Leveki Mangafaoa and the grant of an occupation order.
[2] The respondent, as the current Leveki Mangafaoa on two of the sections, opposes the applications and argues that the issues should be settled between the mangafaoa before the matter proceeds before the Court.

Background

The land

[3] This land was originally known as Part Tukaiavi Section 14, Block II, Alofi District.^[1] An investigation of the land was undertaken by the Court in 1941 and a determination made that Ukufoulua and Lavahega were entitled to a freehold order, with Ukufoulua as to the northern half and Lavahega as to the southern half.^[2] However, the freehold order was not sealed and a rehearing of the investigation was sought in 1962. The Court indicated that a rehearing should be granted but the matter was adjourned sine die.^[3]
[4] The matter was not dealt with again until 1970, when an application was made to determine the title and appoint a Leveki Mangafaoa.^[4] The Court found there was insufficient evidence to warrant altering the Court’s determination of 1941 and on 3 November 1970 orders were made determining the mangafaoa of the land as Tupuna and appointing Luipopi Ikitoelagi as the Leveki Mangafaoa.^[5]

[5] The land was then partitioned on 20 July 1994, creating Section 1, Block II, Alofi District (Part Tukaiavi). ^[6] Merry Ano Heka and Ben Lui were appointed as joint Leveki Mangafaoa.^[7] On 30 November 1994, the land was again partitioned into Sections 2 and 3, Block II, Alofi District (Part Tukaiavi). ^[8] New certificates of title were issued on 1 September 1995.^[9] Merry Ano Heka was appointed as sole Leveki Mangafaoa of Section 2. The Leveki Mangafaoa for Section 3 remained as Luipopi Ikitoelagi but was subsequently changed to Ahogia Ikitoelagi on 1 October 2007.^[10]

Procedural history

[6] Mr Koligi initially filed three applications on 26 February 2015.^[11] The applications sought a partition and the appointment of a Leveki Mangafaoa in relation to Section 3 Block II, and for a change of Leveki Mangafaoa in relation to Section 2 Block II.
[7] On 23 March 2015, Mr Koligi then filed an application for an interim injunction, to prevent the respondent, her family, servants, workmen and agents from carrying out any works on Sections 2 and 3, Block II.^[12] The application for injunction was heard before Coxhead J on 26 March 2015.^[13] Although the application was ex parte, the respondent, Ms Iakopo, and her daughter appeared at the hearing. Ms Iakopo advised the Court that there was no building occurring on the land at the time and nor was there an intention to build. At the conclusion of the hearing an interim injunction was issued by Coxhead J pending resolution of the substantive applications.
[8] Subsequently on 24 September 2015, Mr Koligi together with Heleta Ikitoelagi filed two further applications, seeking cancellation of the existing survey for Sections 1, 2 and 3 of Block II, and for the land to be re-surveyed and re-partitioned into two areas of land, along with the appointment of a Leveki Mangafaoa.^[14] Ms Ikitoelagi filed a further application at the same time for an occupation order in relation to her previous house site.^[15]
[9] The applications then came before me for hearing on 24 November 2015. At the conclusion of the hearing I adjourned the matters for the issue of a reserved decision in due course.

Mr Koligi’s submissions

[10] Mr Koligi is a direct descendant of the common ancestor of the land, Tupuna, being a grandson of Koligi Hale Ukufoulua and a great grandson of Ukufoulua Tohia. He was born in Niue and lived on Tukaiavi; however he currently resides in New Zealand.
[11] As noted, Mr Koligi filed several applications in relation to the land. In the first instance, Mr Koligi’s applications essentially seek a rehearing of the original orders for partition, and a re-partition of the land from three sections into two. He claims that there are two remaining branches of the mangafaoa that have rights in Tukaiavi, being the descendants of Vaitupe Ikitoelagi and Koligi Hale Ukufoulua, and that the division of the land should reflect each branch’s entitlement. Mr Koligi ultimately seeks to build a home for his family, including his extended family, on his ancestral land at Tukaiavi, and return there to live.
[12] Mr Koligi also sought the removal of the existing Leveki Mangafaoa of the lands. Although there are currently three Leveki, the majority of issues raised by Mr Koligi related to Mere Ano Lui Iakopo. Mr Koligi noted that, until recently, he was unaware that both Ben Lui and Ahogia Ikitoelagi were also Leveki, as they had never been referred to as such at any meetings of the mangafaoa, and Ms Iakopo was the only point of contact. Mr Koligi argued that the Leveki Mangafaoa have allowed partitions and leases of the land to occur without the knowledge or consent of the mangafaoa, and have exercised authority over the land that is not in the best interests of the mangafaoa. Ms Iakopo also served a trespass notice on Mr Koligi which claimed he was not related by blood to the land and prevented him from entering on to the land. Mr Koligi says attempts to meet with Ms Iakopo have resulted in friction and confrontation and in meetings being shut down before discussions can occur. He submitted that if the land is re-partitioned into two sections as sought, each branch should elect a Leveki Mangafaoa in relation to their section. Further, if Heleta Ikitoelagi is granted an occupation order, she should be able to appoint a Leveki Mangafaoa for her house site.
[13] Mr Koligi filed minutes of meetings held on 6 February 2015 in New Zealand and in Niue on 24 February 2015 and submitted that several other meetings, both formal and informal, had been held previously with the mangafaoa to discuss his intentions for the land. He says there has therefore been full awareness of his proposals amongst the mangafaoa. He argued that the majority of the mangafaoa support the applications and he provided consents and statements in support from 49 members of the mangafaoa.

Ms Ikitoelagi’s submissions

[14] Heleta Vanila Ikitoelagi is also a direct descendant of Tupuna, being the daughter of Vaitupe Ukufoulua and a granddaughter of Ukufoulua Tohia. Ms Ikitoelagi was born and raised on Tukaiavi but now resides in New Zealand.
[15] As noted above, Ms Ikitoelagi filed applications jointly with Mr Koligi for the cancellation of the surveys for Sections 1 to 3, and for the land to be re-partitioned into two sections. Ms Ikitoelagi submitted that she is aware of conflicts that have arisen over the years with the respondent, her mother, and members of the mangafaoa in relation to the land. In particular, that the respondent and her mother rejected the claims of Mr Koligi despite him clearly being a member of the mangafaoa. Ms Ikitoelagi submitted that the majority of the mangafaoa agree that the best way forward is for the land to be partitioned between the two surviving branches of the mangafaoa, which will ensure security of the rights of each branch to their share of the land, and will hopefully extinguish the arguments and disputes. She noted that it was always understood that the northern part of the land was Vaitupe’s share and the southern part of the land was Koligi’s share.
[16] Ms Ikitoelagi also sought an occupation order in relation to the site where her house was formerly located. She submitted that she built a house on Tukaiavi in or around 1965 and, when she left for New Zealand in 1972, the house was left in the care of her son and later her sister. When her sister also went to New Zealand, the house became “communal property” for those of the mangafaoa who still resided in Niue, namely the respondent and her family. The house was then partly destroyed by Cyclone Heta in 2004. Ms Ikitoelagi says that it was her understanding that the damage could have been repaired, however a brother of the respondent bulldozed the house without her knowledge and now only the concrete foundations remain. Ms Ikitoelagi submitted that it was always her intention to return to Niue but this has been hindered by the fact that she no longer has a house to reside in. She therefore sought an occupation order to allow her to rebuild her house in the same location.

Respondent’s submissions

[17] Ms Iakopo is also a direct descendant of Tupuna, being a daughter of Luipopi Ikitoelagi, the son of Vaitupe Ukufoulua. As noted, she is the sole Leveki Mangafaoa on Section 2 and a joint Leveki Mangafaoa on Section 1, and she resides on the land in Niue.
[18] Ms Iakopo did not file any written submissions with the Court, apart from an objection to a survey of the land being undertaken. However, she did appear at the hearing and opposed the applications. Ms Iakopo argued that the matter should be adjourned to allow the two branches of the family to discuss the issues and come to an agreement before bringing the matter back to the Court. She contended that there were other matters regarding the Tukaiavi land that needed to be settled before these proceedings could be heard, however she did not provide any specific details on what those matters were, except to say they were matters between her and her mother.
[19] Ms Iakopo acknowledged that the land had been partitioned; however she noted that this was done by her father when he was the Leveki Mangafaoa. She says that she was the only person living on the land in Niue permanently and she made a request to her father to partition part of the land to enable her to start a business. She says he gave his approval and she subsequently partitioned the land twice, although I note that this was done following his death. As a result, there are now three sections of the land.
[20] Ms Iakopo submitted that she was surprised by the partition application, and noted that the reason she disputed the application was due to a lack of respect shown to her as the Leveki Mangafaoa by the applicants. While she indicated some willingness to provide the applicants with a piece of the land, she reiterated her request for the matter to be discussed between her and Koligi’s family first, without the applicant’s lawyer, whom she argued has created separation amongst the family.

Issues

[21] The issues for determination by the Court are:

• (a) Should the Court grant a rehearing of the partition orders made in 1994?
• (b) If a rehearing is not granted, are there alternative options available?
• (c) Should the Court grant a removal of Leveki Mangafaoa?
• (d) Should the Court grant an occupation order in favour of Ms Ikitoelagi?

Rehearing of partition orders

[22] While the applications filed are framed as seeking the cancellation of the survey for Sections 1 to 3 of Block II, Alofi district, (Part Tukaiavi), I confirmed with the applicants that what they are essentially seeking is for the partition orders made in 1994 to be set aside in favour of their partition proposal. However, the Court does not have jurisdiction to cancel partition orders unless the orders have been obtained through fraud.^[16] There has been no suggestion of fraud and as I indicated at the hearing, in the absence of submissions by counsel for the applicants I proceed on the basis that the applicants seek a rehearing of the grant of the partition orders.
[23] Section 45 of the Niue Amendment Act (No. 2) 1968 (“the NAA”) provides:

45 Rehearings

(1) On the application of any 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) On any such rehearing the Court may either affirm, vary, or annul its former determination, and may exercise any jurisdiction which it might have exercised on the original hearing.

(3) When a rehearing has been so granted, 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 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 so varied or annulled at any time after the signing and sealing thereof.

[24] Rule 30 of the Land Court Rules 1969 requires that an application for rehearing under s 45 of the NAA be filed within 14 days of the Court’s order or determination in respect of which the rehearing is sought.
[25] In Tuineau v Talagi – Pt Faleapuna, Makefu, Isaac J noted the circumstances in which an application for rehearing can be granted:^[17]

[26] Also, as set out by the Niuean Court of Appeal in Tasmania v Rex, which followed Ladd v Marshall, Dragicevich v Martinovitch and Almeida v Opportunity Equity Partners Ltd (The Cayman Islands), the granting of a rehearing application is limited to the following circumstances:

(i) Where further material evidence of a credible nature has been discovered which was not available at the original hearing;

(ii) 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;

(iii) Where judicial error is involved, a party is entitled to a retrial if the result of the error is a fundamental miscarriage of justice.

[26] Isaac J noted that the Court has an absolute discretion as to whether or not to grant a rehearing, however it can only be exercised if one of the above criteria has been satisfied, and not simply to allow an unsuccessful party the opportunity to re-litigate the case.
[27] In Mautama v Sionetali – Part Fumei/Lalovi, Hakupu District, Isaac J expanded on the principles relating to applications for rehearing:^[18]

[9] The principles relating to rehearing cases are set out in the case of Grove Broadcastings Co. Ltd v Telesystems Communications Ltd (2000) GENDND 1496 (10 November 2000), Ladd v Marshall (1954) Ad ER745, Dragicevich v Martinovich (1969) NZLR 306 and Realty Care Corporation v Cooper (1989 2PRNZ 426). These principles include:

(i) That there has been serious misconduct on the part of a Judge, juror, witness or lawyer;

(ii) Perjured evidence has been offered to the Court;

(iii) There has been discovery of credible and material evidence which could not have been reasonably foreseen or known at the trial;

(iv) There has been a breach of natural justice; or

(v) There has been fraud or corruption; and

(vi) The Court is satisfied that there has been a miscarriage of justice.

[10] The Court’s jurisdiction as set out in s.45 Niue Amendment Act (No.2) 1968 makes it clear that the Court has an absolute discretion as to whether or not to grant a rehearing.

[11] In exercising this discretion the Court must apply the principles above and in essence determine whether in a particular case a miscarriage of justice has occurred.

[28] In Tahega v Kapanga – Part Limu Namukulu the Court of Appeal found that s 45 of the NAA clearly gives the Court a discretion to grant or refuse to grant a rehearing application, however this discretion must be exercised in a principled manner with the fundamental consideration being whether there has been a miscarriage of justice sufficient to justify the grant of rehearing.^[19]

Discussion

[29] The brief minutes of the Court hearings relating to the partitions of the land do not appear to contain any evidence of discussion with the mangafaoa, or their consent regarding those partitions. The recent meetings held with the mangafaoa also support this conclusion, with the lack of consultation on the earlier partitions by the current Leveki Mangafaoa being recorded. This raises an issue whether the Leveki Mangafaoa has complied with her duties and obligations under the NAA; a matter which will be discussed later in this judgment.
[30] However, unfortunately for the applicants, s 45(5) of the NAA is clear that no order shall be varied or annulled after it has been signed and sealed. The Registrar has confirmed to me that the partition orders in question have in fact been signed and sealed, and therefore variation or cancellation of those orders is not available by way of rehearing.
[31] The application for rehearing is therefore dismissed.

Are there any alternative options available?

[32] As I have found, the Court does not have jurisdiction to cancel a partition order in the absence of fraud, and a rehearing of the original partition orders is not available in the present circumstances. I now turn to consider whether there are any alternative options available which could give effect to the applicant’s partition proposal.

The partition proposal

[33] The applicants submitted that there were only two branches of the mangafaoa remaining, being the descendants of Vaitupe Ikitoelagi and Koligi Hale Ukufoulua, and that the division of the land should reflect the rights of the two branches. Both Mr Koligi and Ms Ikitoelagi argued that it has always been understood that the northern side of the land belonged to Vaitupe and the southern side of the land to Koligi Hale.
[34] When the original investigation of the land was undertaken in 1941, the Court noted that Ukufoulua and Lavahega were entitled to a freehold order, being descendants of the common ancestor Tupuna, with Ukufoulua as to the northern half and Lavahega as to the southern half. The evidence provided to the Court by the applicants was that Lavahega died without natural issue and her adopted children were found to have no entitlement to the land. Her interest was therefore absorbed into that of Ukufoulua. Further, although Ukufoulua had several children, only two lines have survived, being those of Vaitupe and Koligi Hale.
[35] It was on this basis that the applicants argued the land should be divided, which would reflect the entitlement of each branch of the mangafaoa and hopefully reduce the friction between the mangafaoa and the respondent’s family. Each branch would then have the opportunity of appointing a Leveki Mangafaoa in relation to their section of the land.
[36] The respondent raised only a general objection to the partition application based on the lack of respect shown to her as the Leveki Mangafaoa and she did not directly address any details of the partition proposal. She expressed some willingness to provide land to the applicants, but requested further discussions between her and Mr Koligi’s family.

[37] Sections 34 and 36 of the Land Act 1969 sets out the Court’s jurisdiction and discretion in relation to the partition of land as follows:

34 Jurisdiction to partition Niuean land

(1) The Court shall have exclusive jurisdiction to partition Niuean land.

(2) The jurisdiction to partition shall be discretionary and the Court may refuse to exercise it in any case in which it is of the opinion that partition would be inexpedient in the public interest or in the interests of the Mangafaoa or other persons interested in the land.

36 Discretionary powers of Court

In partitioning any land the Court may exercise the following discretionary powers –

(a) It may where the Leveki Mangafaoa wishes to allocate a portion of the landto a member of the Mangafaoa or the Mangafaoa has become unduly large or in cases of irreconcilable family disputes, partition the land among groups of members of the Mangafaoa on what appears to the Court to be the general desire of the persons concerned to be just and equitable;

(b) It shall avoid, as far as practicable, the subdivision of any land into areas which because of their smallness or their configuration or for any other reason, are unsuitable for separate ownership or occupation;

(c) It may appoint new Leveki Mangafaoa in respect of the pieces of land affected by any partition orders.

[38] The Court therefore has discretion as to whether to grant a partition or not, and may consider factors such as the size of the mangafaoa, any irreconcilable family disputes, the overall interests of the mangafaoa and other persons interested in the land, along with the general desire of the persons concerned and what is just and equitable in the circumstances.
[39] In addition to the provisions in ss 34 to 36 of the Land Act 1969, s 37 also provides:

37 Combination of several areas of land

When the Mangafaoa of one area of land is also the Mangafaoa of any other areas of land, the Court may, for the purposes of partition between groups of members of the Mangafaoa, treat those several areas as a single area owned by them and make an order or orders of partition accordingly.

[40] On the face of it, this provision allows the Court to treat different areas of land owned by the same mangafaoa as one area, and partition the lands between groups of members of the mangafaoa. Arguably, this would allow the Court to effectively re-partition land as between mangafaoa groups.
[41] I have been unable to locate any decisions which have considered or applied s 37, but I note there is a similar provision for combined partitions in Te Ture Whenua Māori Act 1993 in relation to Māori land in New Zealand.^[20] The nature of the Māori Land Court’s jurisdiction regarding partitions under Te Ture Whenua Māori Act 1993 has been noted as the rationalisation or reorganisation of land holdings by the definition of separate parcels, in order to facilitate occupation and use of the land, rather than as the destruction of communal ownership.^[21] Relevantly, a “combined partition” has been recognised as being in essence an amalgamation.^[22] This approach aligns closely with Niuean concepts of partition which retain the underlying communal ownership of the mangafaoa.^[23]
[42] In cases where the New Zealand Courts have made orders for a combined partition it has been on the basis that such orders represent a rationalisation of particular landholdings, although the Court must still have regard to the same matters which are applicable to an ordinary grant of partition.^[24]
[43] I note that Sections 1 to 3 of Block II, Alofi District (Part Tukaiavi) are all within the ownership of the same mangafaoa, given that the common ancestor for all three blocks is recorded as Tupuna. The lands would therefore qualify under s 37 of the Land Act 1969 and could be treated as a single area of land for the purposes of partition between members of the mangafaoa. The applicants want to alter the partition of the land from three sections to two, to allow the land to be partitioned equally among the two surviving branches of the mangafaoa, which is essentially a reorganisation of the land among the members of the mangafaoa.
[44] As the lands currently stand all three sections are controlled or utilised by members of the Vaitupe branch of the mangafaoa. In these circumstances it would be just and equitable to reorganise the partition of the lands pursuant to s 37, from the current three sections, into two equal sections to be allocated between the two remaining branches of the mangafaoa. This would facilitate occupation and use of the lands by both the Vaitupe and the Koligi Hale branches of the mangafaoa.
[45] I have considered the opinions of those members of the mangafaoa who have put their views before the Court. Ms Iakopo opposes the applications and submitted that the mangafaoa should resolve the issue. She has not given any other reasons for disputing the applications other than lack of respect shown to her as Leveki Mangafaoa. Given the recent history of dealings between Ms Iakopo and the applicants, I am not confident these issues could be resolved through amicable agreement. Ms Iakopo has not put forward any reasons to persuade me that a re-organisation of the partition pursuant to s 37 is not appropriate in this case.
[46] Mr Koligi’s partition proposal is supported generally by the mangafaoa according to the meeting minutes and other documents filed with the Court. I note, however, that there is no information on exactly how large the mangafaoa is. Ultimately though, I have discretion to grant a partition, and can refuse if inexpedient in the interests of the mangafaoa. This situation involves what seems an irreconcilable family dispute about control and use of the lands, and there is demonstrated support from the mangafaoa for the proposal.
[47] In these circumstances it is both expedient, and just and equitable in the interests of the mangafaoa, that there is an equal division of the lands between the remaining two branches of the mangafaoa. In order to facilitate a new partition order that achieves these purposes, more details will be needed regarding the current use of the land, including any leases. I understand Ms Iakopo resides in a homestead on the land and operates a business on a separate section. There are also the foundations of Ms Ikitoelagi’s former house on the land. A proper sketch plan of the proposed partition will be needed to demonstrate how it would impact on the existing use.[48] The Court can also appoint new leveki in respect of the lands affected by new partition orders. This may mean that it is not necessary to remove Ms Iakopo as a leveki.

Application for removal of Leveki Mangafaoa

[49] Mr Koligi also filed an application to change the Leveki Mangafaoa, in particular, the removal of Merry Ano Lui Iakopo. He submitted that she has failed to consult with the mangafaoa on important decisions concerning the development and utilisation of the land, and her actions have not been in the best interests of the mangafaoa. Further, attempts to meet and have discussions with Ms Iakopo often result in confrontation.
[50] Sections 14 to 16 of the Land Act 1969 make provision in relation to the appointment, powers and functions, and removal of Leveki Mangafaoa. Those sections provide as follows:

14 Appointment of Leveki Mangafaoa

(1) When the ownership of any land has been determined any member of that Mangafaoa who was reached the age of 21 years may apply in writing to the Court for an order appointing a Leveki Mangafaoa of that land.

(2) If the application is signed by members who in the Court’s opinion constitute a majority of the members of the Mangafaoa whether resident in Niue or elsewhere the Court shall issue an order appointing the person named in the application as the Leveki Mangafaoa of that land.

(3) If no such application is received within a reasonable time, or applications are each signed by members who, though having attained the age of 21 years, constitute less than a majority of the Mangafaoa who have attained such age the Court may appoint a suitable person to be Leveki Mangafaoa of that land.

(4) The appointment of a Leveki Mangafaoa shall not be questioned on the grounds that any member of the Mangafaoa was absent from Niue, but the Court may consider any representation made in writing by any member so absent.

(5) Any person who is domiciled in Niue, and whom the Court is satisfied is reasonably familiar with the genealogy of the family and the history and locations of Mangafaoa land, may be appointed as a Leveki Mangafaoa of any land, but if he is not a member of the Mangafaoa he shall not by virtue of such appointment acquire any beneficial rights in the land.

(6) In appointing any Leveki Mangafaoa the Court may expressly limit his powers in such manner as it sees fit.

15 Powers and functions of Leveki Mangafaoa

(1) The Leveki Mangafaoa of any land, subject to this section and to the terms of his appointment and to any order or direction of the Court, shall have power to control the occupation and use of the land under Niuean custom and shall have power to alienate the land in accordance with the subject to Part 3.

(2) In the exercise of his powers under this section the Leveki Mangafaoa shall under Niuean custom consult with the members of the Mangafaoa whether resident in Niue or elsewhere and shall in particular meet the requirements as to consultation laid down by section 17(3) in relation to the sale and lease of land and the giving of security charges over land.

16 Removal and replacement of Leveki Mangafaoa

(1) The Court may remove from office any Leveki Mangafaoa if in its opinion he cannot by reason of mental or physical disability or for any reason carry out his duties satisfactorily or if he is shown to the satisfaction of the Court to have exercised his powers otherwise than in accordance with Niuean custom or in accordance with equity and good conscience or if he tenders his resignation in writing to the Registrar.

(2) Upon the death or removal from office of any Leveki Mangafaoa a new Leveki Mangafaoa may be appointed in the manner provided by section 14 and all the provisions of that section so far as they are applicable shall apply accordingly.

[51] Therefore, where the existing Leveki Mangafaoa has not resigned, the Court can remove them where they are unable to carry out their duties satisfactorily, or where the Court is satisfied that they have exercised their powers otherwise than in accordance with Niuean custom, or equity and good conscience.

Discussion

[52] Ms Iakopo only briefly responded to the allegations made by the applicants. She admitted that the land had been partitioned, but did not address the lack of consultation with the mangafaoa, instead arguing that this was done with the approval of her father Luipopi Ikitoelagi; the original Leveki Mangafaoa of the land. She says that she was the only person permanently living in Niue and the partition was to facilitate the operation of her business. Ms Iakopo also noted her general objection to the applications on the basis of the lack of respect shown to her as the Leveki Mangafaoa by the applicants.
[53] The provisions in s 15 of the Land Act 1969 clearly provide that the Leveki Mangafaoa has an obligation to consult with the members of the mangafaoa in exercising their powers regarding the occupation and use of the land. That section also provides that the Leveki Mangafaoa must consult with members whether they are resident in Niue or elsewhere. Any suggestion that Ms Iakopo somehow has a greater entitlement over other members of the mangafaoa by virtue of being resident on the land in Niue, or a lesser obligation to consult with mangafaoa not resident in Niue, does not hold weight.
[54] The minutes of the meetings of the mangafaoa provided by the applicant show that there has been very little, if any, consultation by Ms Iakopo. This appears to also extend to the other Leveki Mangafaoa, Ben Lui and Ahogia Ikitoelagi, in relation to whom Mr Koligi submitted it was not previously known they had been appointed as Leveki Mangafaoa. There is no evidence of consultation prior to the partitions of the land and appointment of further leveki, and Ms Iakopo has offered no explanation in that regard. The partition of land is an important matter and it is not unreasonable to expect a certain level of consultation.
[55] Even if approval was given by Luipopi Ikitoelagi, there remains an obligation to consult, and in any case the Court minutes show that the partitions were granted following Mr Ikitoelagi’s death, when Ms Iakopo was the Leveki Mangafaoa. This in itself raises the issue of whether, in granting a partition to facilitate plans for her own business, such action can objectively be viewed as in the best interests of the mangafaoa.
[56] At the Court hearing, Ms Iakopo requested that the matters be adjourned to allow the two branches of the mangafaoa to discuss the issues and come to an agreement. She also expressed some willingness to provide the applicants with a piece of the land. In saying that however, I note the discussions and meeting regarding these matters to date have descended into confrontation and the applicants have expressed their frustration at the ongoing friction and lack of progress able to be made.

Decision

[57] By failing to properly consult with the mangafaoa, particularly those members residing outside Niue, about the partitions and appointments of leveki, Ms Iakopo did not exercise her powers as Leveki Mangafaoa in accordance with Niuean custom. She also granted a partition to advance plans for her own business without properly consulting the mangafaoa. This action was not in the best interests of the whole mangafaoa, or in good conscience and equity.
[58] As discussed earlier, a combined partition pursuant to s 37 of the Land Act would require leveki for the new sections. Both branches of the mangafaoa would then have the opportunity to select their Leveki Mangafaoa. The Vaitupe branch can determine whether they wish to appoint a new leveki or whether Ms Iakopo will remain.

Occupation order

[59] The final matter for consideration is the application by Ms Ikitoelagi for an occupation order. Ms Ikitoelagi sought the grant of an occupation order in relation to a site on the land which was formerly occupied by her house, until its demolition sometime after 2004. Ms Ikitoelagi seeks an occupation order as she wishes to rebuild her house on the land.
[60] Section 31 of the Land Act 1969 governs the grant of occupation orders by the Court. It provides:

31 Court may make occupation orders

(1) The Court may under this section make in respect of any Niuean land to a member of the Mangafaoa or the spouse or surviving spouse of a Member or a Member and spouse jointly an occupation order on such terms and conditions not inconsistent with this section as may be specified in the order.

(2) Application for an occupation order shall be made by the Leveki Mangafaoa or by the member of the Mangafaoa desiring the order, or by both, and shall be accompanied by a description and plan of the area to be occupied.

(3) Every occupation order shall upon registration take effect under its tenor.

(4) Unless the area concerned has already been defined by survey and used or occupied as a separate section an occupation order shall not be made over an area of less than 20 perches in the case of a village site and less than 2 acres for a plantation area.

(5) An occupation order may be made for the personal use of the person for whose favour it is made for his lifetime or for some specified term of years or may be granted upon terms that it passes to that person’s successors under Niuean custom.

(6) Every occupation order of village site land shall, if possible, be made in favour of a husband and wife jointly.

(7) No rental or premium shall be payable in respect of an occupation order.

(8) Such occupation order may provide for the termination of it and the reversion to the Mangafaoa of the land affected if the person in whose favour it is made or the person otherwise entitled to the benefit of it;

(a) Ceases to make full use of the land for any period of not less than 2 years which may be specified in such occupation order;

(b) Is absent from Niue for any period of not less than 2 years which may be specified in such occupation order otherwise than with the prior written approval of Cabinet for the purpose of any training, education or instruction;

(c) Fails to perform any of the special covenants which may be specified in the order;

(d) Surrenders rights conferred by the order by executing an instrument in the approved form.

(9) (a) The Leveki Mangafaoa or the Registrar may apply to the Court for

certificate that the order has for any reason specified in subsection

(8) terminated and the Court may, if it is satisfied that the order was

terminated under subsection (8), give a certificate accordingly.

(b) Any such certificate may be registered.

Discussion

[61] Ms Ikitoelagi has not provided sufficient information for me to determine this application. In particular:

• (a) The exact area of occupation has not been specified and it is not clear if a provisional plan has been prepared or if Plan 862 (relating to Sections 1-3 of Block II) is simply relied on;
• (b) The application does not record whether the matter has been discussed with the Leveki Mangafaoa;
• (c) It is not clear whether it is intended to appoint a leveki mangafaoa in respect of the area of the occupation order; and
• (d) There are no conditions or terms detailed, such as whether it is for Ms Ikitoelagi only and for her lifetime, or whether the occupation order can be succeeded to.

[62] There is also no information about when Ms Ikitoelagi intends to return to Niue and build. This is relevant as, pursuant to s 31(8)(a) and (b) of the Land Act, the occupation order may be made conditional on not being absent from Niue and on full use within 2 years.
[63] This application will be adjourned in order that Ms Ikitoelagi can provide the further information required to determine the application.

Decision

[64] I make the following orders:

• (a) The application for rehearing is dismissed.
• (b) Pursuant to s 37 of the Land Act 1969 there is an order combining Sections 1-3 Block II, Alofi District, into a block equivalent to the former Part Tukaiavi Section 14, Block II, Alofi District, and re-partitioning the combined block into two separate titles of equal size.
• (c) The application for removal of the Leveki Mangafaoa, as well as the appointment of a new additional leveki is adjourned pending confirmation of survey and selection of Leveki Mangafaoa for both new sections.
• (d) The application for an occupation order is adjourned pending provision of further information.
• (e) The interim injunction will continue pending finalisation of the orders.

[65] These orders are conditional on:

• (a) A proper sketch plan of the combined partition being filed that demonstrates how the new sections will impact on the existing use; and
• (b) A survey plan identifying the new sections being filed with, and approved by the Court.

Pronounced at 10am in Wellington, New Zealand on the 12^th day of October 2017.

S F Reeves
JUDGE

^[1] N1/57.

^[2] 1 Land Court Minute Book 75.

^[3] 2 Land Court Minute Book 313-319, 341.

^[4] 3 Land Court Minute Book 226-230.

^[5] 3 Land Court Minute Book 363-366.

^[6] 7 Land Court Minute Book 215.

^[7] Mere Ano Heka is also known as Mere Ano Lui or Mere Ano Iakopo.

^[8] 7 Land Court Minute Book 290.

^[9] N14/4, N14/5, N14/6.

^[10] 13 Land Court Minute Book 246.

^[11] Applications 11213, 11214, and 11215.

^[12] Application 11234.

^[13] 20 Land Court Minute Book 63.

^[14] Applications 11293, 11294.

^[15] Application 11292.

^[16] Tongahai v Tafatu – Section 3, Block III, Alofi District (Part Tapeu) CA Niue, App 1189/62/6, 27 October 2015; Tafatu v Strickland – Part Niuean Land, Vaimilo/Tufu, Sections 12 Block II, Alofi, now Sections 121-123, Alofi District CA Niue, App 10589, 26 September 2016 at [53]. See also Niue Amendment Act (No. 2) 1968, ss 52 and 54.

^[17] Tuineau v Talagi – Pt Faleapuna, Makefu (2011) HC Niue (Land Division), 26 May 2011.

^[18] Mautama v Sionetali – Part Fumei/Lalovi, Hakupu District HC Niue (Land Division), App 5071,5072, 10668 and 10669, 12 February 2016.

^[19] Tahega v Kapanga – Part Limu Namukulu CA Niue, App 11346, 17 August 2016.

^[20] Te Ture Whenua Māori Act 1993, s 298.

^[21] Heta – Taiharuru 4C3B (2010) 13 Taitokerau MB 203 (13 TTK 203).

^[22] Ibid, at [45].

^[23] Tongahai v Tafatu – Section 3, Block III, Alofi District (Part Tapeu) CA Niue, App 1189/62/6, 27 October 2015.

^[24] See Te Whiu v King – Panguru C9, C10 and C11 (2016) 128 Taitokerau MB 100 (128 TTK 100); Searancke – Lot 3 DP 427106 and Part Pouawa 1 Sub 3 Lot 2 Sec 7 Block (2015) 51 Tairawhiti MB 66 (51 TRW 66); Reo v Reo – Whangauru Whakaturia 1D9B1, Whangaruru Whakaturia 1D9B2 and Whangauru Whakaturia 1D9B3 (2015) 100 Taitokerau MB 156 (100 TTK 156).