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Court of Appeal of Niue |
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| Application No: 11549 | ||
| UNDER | Article 55A(3) of the Constitution of Niue | |
| IN THE MATTER OF BETWEEN AND | the land known as Part Maka, Tamakautoga District FUALOSA FUKAVA-FUNAKI of Tamakautoga Appellant JAMES DOUGLAS of Toa, Tamakautoga Respondent | |
| Hearing: | On the papers | |
| Court: | Coxhead CJ Reeves J Armstrong J | |
| Judgment: | 12 February 2019 | |
DECISION OF COURT OF APPEAL
[1] This is an application for special leave to appeal a decision issued by the High Court in 2014. Special leave is required if this matter is to be heard by the Court of Appeal, given the appellant has filed the appeal out of time.
[2] The relevant dates regarding this matter are set out in the timeline which follows:
- (a) On 28 May 2014, Justice Isaac determined the title and appointed a Leveki Mangafaoa in respect of the parcel of land described as part Maka, Tamakautoga.
- (b) In February 2016, the respondent began to bulldoze the land area in order to clear it, based on plan 11016 that was before the Court at the May 2014 hearing.
- (c) In March 2016, the appellant, it appears, informed the Deputy Registrar of the Court that she objected to the boundaries. A note dated 2 March 2016 was referred to Justice Isaac, which set out the objection.
- (d) On 9 March 2016, Justice Isaac issued a direction.
- (e) On 6 April 2017, Justice Isaac heard an application filed by the Deputy Registrar, Mr Herbert Kalauni, seeking a rehearing of the original orders of 28 May 2014. That matter appears to have been concluded on the basis that Mr Talagi, appearing for the appellant, was to file an appeal.
- (f) On 12 April 2017, the Court received an appeal filed by the appellant.
Submissions of the Appellant
[3] The appellant relied on the following grounds in support of her application for special leave:
- (a) The appellant and her family are the rightful owners of the land both north and south of the rock boundary, and therefore have an interest in the title and appointment of a Leveki Mangafaoa for that part of that land only.
- (b) The appellant maintained in the High Court hearing that the rock boundary was not to be touched by the respondent as it is the boundary. The appellant believed that, having been given an assurance in Court by the respondent of that specific requirement, there was no dispute and no need to file an appeal.
- (c) The appellant’s ability to understand plans on paper at a glance and understand Court procedures, was not taken into consideration. The appellant was in Court on 28 May 2014 specifically to offer moral support to her daughter in a separate land matter when she was called to appear on the land matter for the Maka land. She was unprepared and the Registrar did not explain the reason for her appearance, nor give her time to understand the plan put in front of her. The documents that were given to her to affix her signature to were not explained to her at the time, which she says caused the prejudice.
- (d) At the 2014 hearing, the appellant and her son showed where the boundary line must run. They informed those present that the boundary was where the rocks are, even to the extent of giving away a section of their own land on the condition that the rock boundary remain undisturbed.
- (e) In February 2016, the respondent started to bulldoze the land area and, in so doing, disturbed the rock boundary. This took place nine months after the orders were made by the Court. Therefore, as a result of the conduct of the respondent, the appellant was put in a position where legal redress would prejudice her upon her appeal, if the rules governing appeals are strictly applied.
- (f) An application for special leave to appeal is the only legal avenue for the appellant to seek justice.
- (g) If the rules governing appeals are applied strictly, the appellant will suffer a grave injustice, in that her and her family will be deprived of the land that rightly belongs to them. On the other hand, the respondent will not be prejudiced if special leave to appeal is granted. Therefore, it would be in the interests of justice for special leave to be granted.
[4] The appellant also submitted that she knew of the existence of the rock boundary through occupation and working the land, whereas the respondent had no knowledge of it until it was exposed during the bulldozing.
[5] Further, Provisional Plan A or Provisional Plan 11016, relied on in the original title proceedings, included a recommended boundary line drawn by the Registrar, which was East and South of the rock boundary. This plan was a result of the Registrar’s recommendation. How and why the Registrar made such a recommendation was not explained to the appellant.
Reasons for delay
[6] The appellant states that the reasons for the failure to file an appeal within time are:
- (a) The appellant was of the understanding that the respondent agreed in Court that the rock boundary was to be left alone and not removed. Accordingly, she saw no reason to file an appeal within the statutory time period.
- (b) It was not until February 2016 that an attempt by the respondent to remove the rock boundary became a concern and hence the dispute.
- (c) In his direction of 9 March 2016 Justice Isaac noted that if there is no settlement then appellant will have to consider her legal options. Even with this direction, any appeal filed would have been out of time and therefore bound to fail.
Submissions of the Respondent
[7] Mr Douglas states that it is unclear why a challenge to the decision of Justice Isaac was not made within the appeal time of two months after the decision of 28 May 2014. The appellant took 21 months to raise a request for special leave.
[8] Mr Douglas submitted that the appellant had a reasonable and fair opportunity in front of Justice Isaac to mark the rock boundary on Plan 11016, which she did. The respondent states that the appellant has now changed her mind regarding the boundary and sought a re-survey of the plan.
[9] The respondent submits that a Court order was made, and Mrs Funaki indicated the boundaries at that 2014 sitting, marking them in her own hand on the plan. He has not disturbed the rock boundary indicated by Mrs Funaki during the 2014 Court hearing. The 2014 order indicates the area the respondent is able to clear and he is within that boundary.
[10] Mr Douglas submitted that special leave should only be granted where a grave injustice is found to be contained in a Judge’s decision, having taken into account the evidence given during a fair and equitable hearing. He says the order of the Court made in 2014 should be upheld and the application dismissed.
The Law
[11] Section 75 of the Niue Amendment Act (No. 2) 1968 states:
75 Appeals from Land Court
(1) Except as expressly provided to the contrary in this Act, the Court of Appeal shall have jurisdiction to hear and determine appeals from any final order of the Land Court, whether made under the principal Act or this Act or under any other authority in that behalf.
(2) Any such appeal may be brought as of right at the suit of any party to the proceedings in which the order is made, or at the suit of any person bound by the order or interested in it.
(3) Every such appeal shall be commenced by notice of appeal given in the prescribed manner within two months after the date of the minute of the order appealed from (whether before or after the commencement of this Act).
[12] Article 55A of the Constitution of Niue states:
55A Jurisdiction of Court of Appeal
(1) Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to hear and determine any appeal from a judgment of the High Court.
(2) Subject to the provisions of this Constitution, and such time limits as may be prescribed by enactment within which an appeal l lie to the Coue Court of Appeal from a judgment of the High Court –
(a) As of right, if the High Court certifies that the case involves a substantial question of law as to the interpretatr effect of any provision of this Constitution;
(b)> (b) As of right, from any conviction by the High Court in the exercise of its criminal jurisdiction whereby the appellant has been sentenced to death or to imprisonment for life or for such term, or to such fine, and from any such sentence (not being a sentence fixed by law) as shall be prescribed by Act;
(c) As of right, when the matter in dispute on the appeal amounts to not less than such value as shall be prescribed by the Act;
(d) With the leave of the High Court in any other case, if in the opinion of that Court the question involved in the appeal is one which by reason of its general or public importance, or of the magnitude of the interest affected, or for any other reason, ought to be submitted to the Court of Appeal for decision;
(e) In such other cases as may be prescribed by the Act.
(3) Notwithstanding anything in subclause (2) of this article, and except where under any Act a judgment of the High Court is declared
to be final, the Court of Appeal may, in any case in which it thinks fit and at any time, grant special leave to appeal to that Court
from any judgment of the High Court, subject to such conditions as to security for costs and otherwise as the Court of Appeal thinks
fit.<
Discussion
Does the appeal raise a question of law?
[15] The appeal does not raise a question of law. Instead, the appeal raises questions of fact regarding the appellant’s view as to the boundaries of the titled land, and also raises issues as to the appellant’s understanding, or misunderstanding, of what happened at the hearing on 28 May 2014. The appellant also disputes statements made regarding identification of the rock boundary. Accordingly, the appeal does not raise any issues of law.
Is this a matter of general importance or principle?
[16] As noted, the appellant seeks to appeal the decision issued in 2014. A direction was issued on this matter in 2016 followed by a rehearing of the matter on 6 April 2017. A rehearing was not granted and the matter was concluded on the basis that the appellant would file an appeal.
[17] At the rehearing, Justice Isaac indicated that the title was issued following an investigation on the day by the surveyors. Clearly shown on the plan are the surveyor comments that there is no existing rock boundary in the area shown by Mrs Funaki. The surveyor and Registrar then signed off on the plan fixing the boundary, noting that the rock boundary was found further down and fixed by the surveyor creating a title.[3] There was question however whether the rock boundary found was in fact created by Mr Douglas’ bulldozing of the site. Justice Isaac went on to note that the respondent is protected by the Niue Land Act, given a title was issued by the Court in 2014 based on the plans, and that such title should have been issued.
[18] The appeal and submissions in support of the appeal and in support of the application for special leave, relate to the boundary dispute between Mrs Funaki and Mr Douglas. We do not consider they raise any questions of public interest, nor of general importance that require further consideration. As we have noted, the appeal is very much based on disputed facts.
Is there a reasonable prospect of success?
[19] The general submission put forward by the appellant was that there has been an injustice in that, when she marked the rock boundary in Court in 2014, she was confused and marked the wrong boundary.
[20] Mr Talagi, on behalf of the appellant, submitted that the affidavits filed in support of the appeal set out the substance and evidential basis of the appellant’s claim to the subject land. He says the claim has a great deal of merit and the appeal is likely to succeed should the matter proceed to a full hearing. However, on our reading of the material on file we reach a different view.
[21] The essence of the appellant’s claim is that the boundary of the title issued is incorrect. However, Mrs Funaki was present in Court when the original application was heard and marked the rock boundary in her own hand, agreeing that Mr Douglas could have from the rock boundary to the road. The orders were subsequently made on that basis. We therefore find it difficult to accept that Mrs Funaki was confused as to where the boundary was and the area she agreed to.
[22] On that basis, we do not think the appeal has a reasonable prospect of success.
Reasons for delay
[23] The appellant submitted that one of the reasons for the delay in filing an appeal was that she was not aware there was a dispute until February 2016, when the respondent started to clear the area to which the Mangafaoa had been granted title. It was at that point that the appellant became aware of the difference in what she says she consented to and the area on the title.
[24] In an interesting way, the appellant is submitting that if the respondent had cleared the land earlier, the appellant may have filed an appeal earlier. In any case, the respondent surely cannot be blamed for the delay.
[25] We further note that Justice Isaac issued a direction on 9 March 2016 suggesting a way to resolve the issue through discussion between the parties. This was also two years after the Court decision was made. Even then, the appellant failed to lodge an appeal at that time and did not seek a rehearing. It was the Registrar of the Court who filed the rehearing, which was heard in 2017.
Decision
[26] The fact that special leave is required is significant and ought not to be granted as a matter of course. Special leave is retained for “special” circumstances. The general principle is that special leave should only be granted if it raises an issue of law or some other matter of general importance or principle which is reasonably arguable. That is not the case with the present application. The appellant has shown no good or sufficient reason for this Court to invoke the provisions of Article 55A(3) of the Constitution of Niue and we do not consider it in the interests of justice to grant special leave to appeal.
[27] The application for special leave is therefore dismissed.
Pronounced at 9:30 am in Rotorua on the 12th day of February 2019.
C T Coxhead S F Reeves M P Armstrong
CHIEF JUSTICE JUSTICE JUSTICE
[1] Hipa v The Crown CA Niue, 9 July 2012 at [3].
[2] McCoy v The Crown CA Niue, CR26/09, 1 March 2011 at [6] – [9].
[3] 21 Land Minute Book at 8.
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