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Kiole v Taufitu [2018] NUHC 6; Land Division 11401 (30 November 2018)

IN THE HIGH COURT OF NIUE
(LAND DIVISION)

App No. 11401, 11402, 11460, 11461, 11462, 11463

IN THE MATTER Determination of Title, s 10 Land Act 1969

AND

IN THE MATTER Appointment of Leveki Mangafaoa, s 14 Land Act 1969

BETWEEN SIMOTE KIOLE

Applicant

AND DION PAKI TAUFITU
First Respondent

AND LEOTOGA PITA

Second Respondent

Hearing: 6 April 2017

(Heard at Alofi)

Decision: 30 November 2018

DECISION OF JUSTICE W W ISAAC

Introduction

[1] This case concerns three separate applications brought to determine title to and appoint a leveki magafaoa over land in Part Makataha, Toi.
[2] Mr Simote Kiole wishes to determine title and appoint himself as leveki magafaoa. Mr Kiole’s intention is to secure his family land and renovate a house already located there for his own use and occupation.
[3] Mr Dion Taufitu brings his own application to determine title and appoint himself leveki magafaoa on certain blocks of this land.
[4] Mr Leotoga Pita also applies to determine title to the land and have himself appointed as leveki magafaoa.

Background

[5] As part of his application, Mr Kiole commissioned a survey of the land and provided a map and a site investigation report. Mr Kiole and the two respondents Mr Taufitu and Mr Pita were all in attendance when the survey was conducted.
[6] A plan was created by the surveyor and has been reproduced above. It shows the land is in five sections: A, B, C, D and E. It also details the features of the land such as houses, graves and trees.
[7] According to the survey plan the total land area is more than half a hectare and each of the five sections is variously disputed between the parties.
[8] Mr Kiole brings his application to determine the title and appoint himself leveki magafaoa over the entirety of the land.
[9] Mr Pita’s application is in relation to the blocks labelled B and D only, he opposes Mr Kiole’s application in relation to those areas.
[10] Mr Taufitu has interests in the area labelled blocks C and E and is seeking to have himself appointed leveki magafaoa on that land only. Mr Taufitu opposes Mr Kiole’s application in relation to those blocks.
[11] Block B is 2080 m² in size and a house known to belong to Semisi is located within the boundaries. Houses said to belong to Makatoni and Kiteona are located on Block C, which has an area of 2130m². These houses are detailed on the plan.
[12] According to the survey plans, the graves of Motufoaki and Foufili are not within the boundaries of the disputed land but are some 16 metres from the outer boundary of Block C.
[13] An injunction to prevent Mr Kiole surveying the land was jointly filed by the respondents in 2016. However, this failed as the land was either untitled or unregistered at the time.

Submissions of Parties

Mr Kiole

[14] Mr Kiole is seeking title to the entirety of the land in question, being Blocks A, B, C, D and E.
[15] Mr Kiole says he is a blood descendant of Part Makataha through his mother.
[16] Mr Kiole wishes to renovate his grandfather’s house on the land known shown as Block C on the survey plan so he might make it his permanent residence in Niue. Mr Kiole’s grandfather, Kiteona, had a hurricane house on the land which is currently in disrepair.
[17] Before her death, Mr Kiole’s mother demonstrated her continued ownership and control of Kiteona’s house by contacting the Justice Department to oppose some actions of Mr Taufitu which would have affected the house. Mr Kiole filed a copy of the letter with the Court.
[18] Mr Kiole believes his ancestors Filimatagi and Faleatea were the founders of Part Toi and he disputes Mr Pita’s relation to them.

Mr Taufitu

[19] Mr Taufitu submitted that part of the land Mr Kiole seeks belongs to his family and his connection can be traced through his ancestor Motufoaki who is buried on the land. Mr Taufitu seeks title to part of that land and to have a leveki mangafaoa appointed. However, he does not contest that two houses on the land belong to the Kiole family.
[20] Motufoaki is Mr Taufitu’s great grandfather and he can trace his connection to him and the land through death certificates from the preceding five generations.
[21] Mr Taufitu believes that Mr Kiole became resident on the land through Lapuho, a son of Motufoaki but because Lapuho had no issue, there can be no continuing connection to the land.
[22] Lapuho lived with a woman known as Sisiaulo but they had no issue together. Sisiaulo had a son named Pautogia who was born before her relationship with Lapuho began. It is from that relationship that Mr Kiole descends and not from Motufoaki.
[23] Mr Taufitu submitted Pautogia’s death certificate as support for this statement, no father is listed there as he was illegitimate.
[24] Makatoni and Kiteona, the ancestors of Mr Kiole, were invited to live on the land in the 1930s but they have no links to the common ancestor.
[25] Mr Taufitu stated that the vast majority of the evidence provided by Mr Kiole showed no connection to the residential land at Part Toi and the remainder was inaccurate or had been altered.
[26] Mr Taufitu alleged that Mr Kiole has a history of making unsubstantiated claims in the Court and that his numerous claims in the village of Toi are based on tampered or inaccurate evidence.
[27] Mr Taufitu affirmed that Mr Kiole’s family land is at Part Makataha where his ancestors are buried. None of Mr Kiole’s ancestors are buried at Toi. It is Mr Taufitu’s contention that the land known as Makataha is further down the road, not at the site Mr Kiole surveyed.
[28] Mr Taufitu’s family had a close relationship with the descendants of Pautogia before they left for New Zealand, and he believes that friendship will continue on their return. He pointed out their use of the Motufoaki name as testament to their relationship and the family’s residence in the Motufoaki homestead, it does not indicate blood relationship.
[29] Mr Taufitu further relied on the evidence of Mrs Salapiga Tutakitoa.
[30] Mrs Tutakitoa is from Part Makataha in the village of Toi and has lived on that land all her life. She was legally adopted by Lotomai Sisiaulo who lived and died at Makataha, Lotomai Sisiaulo’s father also lived and died on the land and so did his mother before him. Mrs Tutakitoa’s stated that her family has no relation to, no land at and no burials in the land known as Part Toi.
[31] Mrs Tutakitoa stated that the land in question is not part of Makataha, which has already been titled to her family, but is separate land. She believed that the genealogy Mr Kiole provided to the Court was the same as her family genealogy but with altered place names. She stated that Mr Kiole is descended from the same common ancestor as her via a different family line and that Sisiaulo lived, died and was buried at Makataha.

Mr Pita

[32] Mr Pita opposes the applications in relation to Blocks B and D, stating he is a descendant of the land and the current leveki magafaoa for Block B.
[33] Mr Pita expressed doubt that Mr Kiole has the support of his family to bring this application. He notes that Mr Kiole has not filed any evidence of support.
[34] Given he left Niue at such a young age, Mr Pita questioned Mr Kiole’s memory of the land and its boundaries. He submitted doubts about the legitimacy of Mr Kiole’s claim to land and sought further evidence of Mr Kiole’s relation to the land. He noted that the land comes to him from his ancestor Iafeta Patuifi and submitted that Mr Kiole is not related his ancestor.
[35] Mr Pita stated there is valuable property on the land in question, contending this may be Mr Kiole’s motivation in bringing his claim.
[36] He further submitted that Mr Kiole had submitted evidence which undermines his own claim. This evidence was of a claim by Mrs Puleata Sanelivi to prevent Mr Kiole’s grandfather from trespassing on her land.
[37] Letters in support of his position as leveki magafaoa were submitted by Mr Pita, he noted he has held this title for a number of years. No one has opposed Mr Pita’s position as leveki magafaoa.
[38] During the hearing, Mr Pita relied on the evidence of Mrs Foufou Talagi.
[39] Mrs Talagi deposed that she is descended from the tupuna Iafeta Patuifi. Block B of the land surveyed has been under the care of Mr Pita as leveki magafaoa for some time. In support of this statement she noted she sought his permission to farm on the land some 10 years ago. Mrs Talagi stated the house on part B belongs to Semisi Kamuhemu. Mrs Talagi has never seen Mr Kiole on the land in her time working on it.

Law

[40] The law relating to investigation of title and appointment of leveki magafaoa is set out in the Land Act 1969:

10 Determination of title

(1) The Court shall determine every title to and every interest in Niuean land according to the ms anms and usages of the Niuean people, as far as the same can be ascertained.

(2) The Court may refuse to proceed with any application for investigation of title for the determinationhe Mangafaoa or relative inve interests in that land, untilas beiore it a plan ofan of the survey of the land affected by it.

...

14 Appointment of Leveki Mangafaoa

(1) When the ownership of any land han determined any memy 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 at land.

(2) If the application is signed by m 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) Ifuch appl 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 Maoa who have attained such auch age the Court may appoint a suitable person to be Leveki Mangafaoa of that land.

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

(5)p>(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 Leve Leveki Mangafaoa of any lant if
he is not a mema 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 Cmay expressly limit his pows powers in such manner as it sees fit.

Discussion

[41] In determining title to the land and appointing leveki magafaoa, the Court must consider genealogical link to the land, evidence of use and occupation, cultivation of the land and burials within its boundaries.
[42] The evidence provided to the Court is of differing quality but what is clear is that the evidence of Mr Kiole lacks detail of genealogical connection to the land. It would appear that the only basis for Mr Kiole’s claim is that one of the houses on Block C was occupied by Kiteona who was his grandfather.
[43] If Mr Kiole had limited his application to the area around the house this may have strengthened his case but instead he chose to seek the whole area surveyed.
[44] This weakened his case as Mr Kiole presented no evidence to substantiate broadening the basis of his claim and in fact it showed a lack of understanding of the genealogical links to the land and his knowledge of the history, use, occupation and the boundaries of the land.
[45] By comparison, the evidence of Mr Taufitu and Mr Pita was detailed and provided the Court with the genealogical links required, the boundaries of the land and the reasons for the occupation of the land.
[46] In particular, Mr Taufitu set out Mr Kiole’s genealogy and showed his lack of blood link to the land. He also explained the reason for Kiteona living on Block C. This was supported by Mrs Tutakitoa, a blood relation of Mr Kiole and she confirmed that Mr Kiole’s family, which is also her family, had no blood link to the land.
[47] Mr Pita also demonstrated in his evidence that Block B was inherited from his ancestor Iafeta Patuifi to whom Mr Kiole is not connected.
[48] With regard to the appointment of leveki magafaoa, both Mr Taufitu and Mr Pita have shown evidence of support for their appointment from the magafaoa. Mr Kiole did not demonstrate he had the necessary support for the role.
[49] Therefore, when the evidence of the parties is considered and balanced, I arrive at the following conclusions:

• (a) That Mr Pita’s application in respect of Blocks B and D should succeed.
• (b) That Mr Taufitu’s application in respect of Blocks C and E should succeed.
• (c) That Mr Kiole’s application in respect to Blocks A, B, C, D and E should fail.

Decision

[50] I now make the following orders:

• (a) That title is determined to Block B of 2080m² and Block D of 250m². The common ancestor will be Iafeta Patuifi and Leotoga Pita is to be appointed the leveki magafaoa.
• (b) That title be determined for Block C of 2130m² and Block E of 120m² and the common ancestor to be Motufoaki. Dion Taufitu is to be the leveki magafaoa.
• (c) That the applications of Simote Kiole be dismissed which means that Block A remains untitled.

[51] There is no order as to costs.
[52] A copy of this decision is to be sent to all parties.

Dated at Wellington this 30^th day of November 2018.

_________________
W W Isaac
JUSTICE