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Laifone v Tauekipaoa [2019] NUHC 8; Application 11507, 11515, 11543, 11647 (10 September 2019)

DECISION OF REEVES J

Copies to:
I Tongatule, Tongatule Law, PO Box 68250, Auckland 1145, [email protected]
K Hekau, Hekau Attorneys At Law Ltd, House 5, Fakaleaina, Alofi South, Niue Islands, [email protected]

Introduction

[1] The present applications arise from long-standing tension between the parties in relation to Section 6, Block III, Mutalau (Part Fufou). In November 2016, the applicant, Sapati Laifone filed an application for an interim injunction to stop the respondents carrying out further works on the land to erect a dwelling-house.
[2] At a hearing on 6 April 2017 Isaac J concluded that the applicant was essentially seeking removal of the leveki magafaoa, and the applicant was directed to file an application that dealt with that issue.
[3] The applicant now seeks the removal of the current leveki mangafaoa and the appointment of a new leveki mangafaoa, in addition to the interim injunction. She has also filed an application pursuant to s 47(1)(a) of the Niue Amendment Act 1968 seeking an order confirming the ownership and common ancestor of the land as Togalima.
[4] The respondents, Hana Tauekipaoa and Norma Palana, oppose the applications on the basis that they are the current recorded leveki mangafaoa and that they have continued to fulfil their duties as leveki mangafaoa.

Background

[5] Section 6, Block III, Mutalau (Part Fufou) is located in the Mutalau District and was created by way of a freehold order dated 17 September 1941.^[1] In that order, the land was titled to Togalima as the sole owner. At the hearing all parties agreed that Togalima is the common ancestor for the block.
[6] On 1 April 1970, the certificate of title registered Togalima as the mangafaoa for the block and Togalima was also appointed as leveki mangafaoa.^[2] These orders were made following the enactment of the Land Act 1969 and the Niue Amendment Act (No 2) 1968.
[7] Togalima adopted one child, Liukehemotu.^[3] Liukehemotu had no natural children, but adopted several children, including the applicant, Sapati Laifone (also known as Pati Laifone). Ms Laifone’s adoption was recorded in an adoption order dated 23 May 1966.^[4]
[8] The current recorded leveki mangafaoa for the block are Hana Tauekipaoa and Norma Palana. They were appointed by order of the Court dated 1 June 2010.^[5] That order was registered on the title on 24 September 2010.^[6]

Procedural History

[9] On 29 November 2016, Ms Laifone filed an application seeking an injunction to stop any further developments on the land. The application was heard before Isaac J in the Niue High Court on 6 April 2017 and adjourned for the applicant to file the substantive applications within one week. ^[7]
[10] On 13 April 2017, the applicant filed further applications for an interim injunction, removal of leveki mangafaoa, and appointment of a new leveki mangafaoa. There is also an application pursuant to s 47(1) Niue Amendment Act 1968. Affidavits in response were filed by the respondents on 26 and 27 April 2017.
[11] On 1 May 2017 further affidavits from the respondents were also filed with the Court seeking the dismissal of the applications.
[12] On 16 November 2017, I heard submissions and evidence from both parties. At the end of the hearing, I gave the respondents four weeks to file further submissions. The applicant was given a further two weeks to file submissions in reply.
[13] The respondents also gave an undertaking to the Court not to engage in any further building works on the land until a decision was given.
[14] The matter was adjourned for a written decision. This judgment sets out my final decision on this matter. I regret the delay in issuing this decision.

Applicant’s submissions

[15] Counsel for the applicant, Ikipa Tongatule, argued that the current leveki mangafaoa should be removed as they have failed to carry out their duties satisfactorily, and that they have exercised their powers otherwise in accordance with Niuean custom and without equity and good conscience.
[16] Mr Tongatule argued that the respondents as leveki had failed in their duties to consult with members of the magafaoa of Togalima resident in Niue or in New Zealand concerning developments on the land.
[17] Mr Tongatule said that the applicant has tried to visit the respondents and inspect the block during her trips to Niue. However, the applicant was “chased” off the block by the respondents who did not wish to engage in discussions regarding the use of the land nor acknowledge the applicant as a daughter of Liukehemotu and grand-daughter of Togalima.
[18] Furthermore, Mr Tongatule argued that the respondents’ intention to erect a dwelling on the block without providing any notice to the applicant and other members of the Togalima mangafaoa would be detrimental to the applicant and the descendants of Togalima.
[19] Mr Tongatule submitted that the applicant had absolute rights to succeed to Togalima’s land. The title to the block shows that Togalima was the common ancestor and the mangafaoa of the block. Counsel argued that as Togalima legally adopted Liukehemotu who subsequently adopted Ms Laifone, she was a direct descendant of Togalima.
[20] Further, Mr Tongatule argued that the respondents could not claim any part of the block as they were not a member of the Togalima mangafaoa as defined by the relevant legislation, nor had they claimed to be. Rather they were connected to another branch of the wider mangafaoa as descendants of Togalima’s brother, Nakaie Tiapani Okomaka.
[21] It was submitted that the respondents have use and occupation of a neighbouring parcel of land, known as Section 1, Block III Mutala. Therefore, they do not require the use and occupation of the block.
[22] The applicant has nominated Epsy Ian Laifone to be appointed as the leveki mangafaoa as he is said to be a descendant of Togalima and is familiar with the history of the land. Ms Laifone contended that this nomination was supported by the Togalima mangafaoa.
[23] In terms of the injunction application, counsel submitted that the respondents should be prohibited from entering the block, be compelled to remove the septic tanks placed on the block and close the driveway on the block. At the hearing Ms Laifone contended that the leveki mangafaoa had made significant changes on the block and in her view, such developments were unnecessary and for the benefit of the leveki mangafaoa only.
[24] Counsel also sought a mandatory injunction directing the respondents to allow a survey team on the block to carry out flagging.

Respondents’ submissions

[25] Counsel for the respondents, Kahealani Hekau, opposed the applications on the basis that the respondents are the current leveki mangafaoa of the block and that they have continued to fulfil their role and duties by residing on the block and furthering its development for the benefit of the wider mangafaoa.
[26] It was submitted that the leveki magafaoa are entitled to exercise their good judgment in relation to maintaining and using the land.
[27] Ms Hekau submitted that the wider mangafaoa of Togalima have continued to confirm the respondents as leveki mangafaoa of the block and that as Togalima was an uncle and grand-uncle of the respondents, they have more entitlement to the block than the applicant as “they are of the same blood”.
[28] Counsel submitted that the applicant’s arguments as to her entitlement as a legal descendant of Togalima have no place in the current applications. In any case, counsel says, the applicant is well out of statutory timeframes should they have wished to challenge previous court orders relating to the block.
[29] The respondents do not dispute the adoptions of Liukehemotu and the applicant. However, Ms Hekau argued that Liukehemotu failed to apply to the Court during his lifetime to confirm his interest to the block and he further failed to care for Togalima in his old age.
[30] Counsel also claimed that Liukehemotu did not acknowledge Togalima as his father, which was contradictory to a basic requirement of Niuean custom, the acknowledgement and recognition of one’s parents.
[31] Ms Hekau also argued that Ms Laifone did not have any real connection with the family or the block as she left Niue at a young age. She further contended that the applicant’s visits back to Niue were with the intention of “taking” rather than “one of giving” back to her family.
[32] In relation to building works on the land Ms Hekau argued that the works carried out by the respondents were done out of necessity and in accordance with legal requirements and consents, at the respondents’ expense.
[33] For instance, the removal of the foundations of Togalima’s former house was on the advice of the Health Department, and the installation of septic tanks was part of a public health project to provide indoor bathroom facilities for the elderly. Hana Tauekipaoa was a recipient of that assistance. The dwelling-house is intended as a guest-house for overseas magafaoa members.
[34] Ms Hekau contended that the applicant has been disrespectful to the respondents which is why she was met with hostile behaviour. Counsel also noted that the applicant could not succeed to Togalima’s land as the Court does not have jurisdiction to grant succession to Niuean land.
[35] In terms of the interim injunction sought, counsel submitted that the respondents opposed any injunction on the basis that their actions were legal and done in accordance with the powers and functions of the leveki mangafaoa.
[36] Counsel also claimed that the nomination of Epsy Ian Laifone must fail because the wider mangafaoa was not consulted in the nomination process.

The Law

[37] Section 16 of the Land Act 1969 provides for the removal and replacement of a leveki mangafaoa by the Court. It provides:

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.

[38] Sections 14 and 15 also make provision for the appointment, powers and functions of leveki mangafaoa. Those sections provide:

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.
[39] Mangafaoa is defined by s 2 of the Act as:

"mangafaoa" in relation to any Niuean land means the family or group of persons descended from a common ancestor, including any person who has been legally adopted into the family, who at any given time are recognised as entitled by Niuean custom to any share or interest in the land, and excludes a former member of the family legally adopted into some other family. Where Niuean land is owned by a single person exclusively, that person is the mangafaoa of the land;

[40] In Koligi v Iakopo, the Court noted that the leveki mangafaoa has a general obligation to consult the mangafaoa in exercising their powers regarding the occupation and use of the land.^[8] The Court emphasised that s 15 of the Act stipulates that the leveki mangafaoa must consult members whether they are resident in Niue or elsewhere, and that residency on the land does not give any person a greater entitlement over the other members of the mangafaoa or a lesser obligation to consult with non-resident members.
[41] In Jacobsen v Vase, the Court dismissed an application for the removal of leveki mangafaoa on the basis that the main allegations against the leveki mangafaoa did not relate to the land and there was insufficient evidence to show that the leveki mangafaoa did not care for the land.^[9]
[42] In Palalagi v Talafasi the Court emphasised the obligations of the leveki mangafaoa, noting the following:^[10]

[24] Given that the land is titled with the ancestor, being Faleapa, the requirement on the Leveki is to consult with the family or group of persons descended from Faleapa, including any person who has been legally adopted into the family, who at any given time is recognised as entitled by Niue custom to any share or interest in land.

[43] The Court has exclusive jurisdiction to grant an injunction pursuant to s 47(1) of the Niue Amendment Act (No 2) 1968.
[44] The essential purpose of an interim injunction has been summarised by the New Zealand Court of Appeal in Roseneath Holdings Ltd v Grieve as follows:^[11]

[35] The object of an interim injunction is to protect the plaintiff from harm occasioned by any breach of rights, that is the subject of current litigation, for which the plaintiff might not be adequately compensated by an award of damages by the Court, if successful at the trial. Against that object it is necessary to weigh the consequences to defendants of preventing them from acting in ways which the trial may determine are in accordance with their rights. The well-established two-stage approach to addressing applications for interim injunctions involves first, ascertaining whether there is a serious question to be tried and secondly, considering the balance of convenience if the relief sought is granted. It is basic that:

“. . . before any question of balance of convenience can arise the party seeking the injunction must satisfy the court that his claim is neither frivolous nor vexatious; in other words that the evidence before the court discloses that there is a serious question to be tried . . ..”: Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 at p 337 per Lord Diplock.

[45] The principles relating to injunctions are well-settled. They require an assessment of: whether there is a serious question to be tried; whether the balance of convenience is in the applicant’s favour; and whether the overall justice of the case supports the grant of an injunction.^[12]

Discussion

Issue of “ownership”

[46] The applicant has filed an application pursuant to s 47(1)(a) Niue Amendment Act 1968 to “confirm the ownership and common ancestor of the land to Togalima”. Section 47 is a general provision and only utilised when there are no specific provisions set out in the Land Act 1969. As the land has already been titled with orders of the Court appointing magafaoa and leveki,^[13] it is unclear what the applicant seeks to achieve with this application.
[47] The parties are agreed that Togalima is the common ancestor, and the respondents do not dispute that the applicant is a member of the magafaoa. The orders made by the Court appointing magafaoa and leveki have not been challenged either by rehearing or appeal, and pursuant to s 52 Niue Amendment Act 1968, all persons with interests in the land are bound by all orders of the Court affecting title.
[48] As there are no outstanding issues of ownership there is no jurisdiction or grounds to make the order sought.

Have the leveki mangafaoa performed their duties under the Act?

[49] The main issue to be determined in this case is whether the respondents should be removed as leveki magafaoa.
[50] Section 16 of the Land Act 1969 sets out the circumstances in which a leveki mangafaoa can be removed by the Court. In this case, the applicant says that the leveki have failed to carry out their duties satisfactorily, including failure to consult, and that they have exercised their powers otherwise in accordance with Niuean custom and without equity and good conscience.
[51] In summary, the allegations set out by Mr Tongatule are:

1. The leveki are not descendants of Togalima, being descended from Togalima’s brother;
2. The works on the land are not for the benefit of the Togalima magafaoa but for a wider group;

100. The leveki have been hostile to the applicant and have not consulted her about the works on the land;

[52] In relation to the allegation that the leveki are not descended from Togalima, this is not a requirement of s 14 of the Land Act, which provides that any person domiciled in Niue who is familiar with the family and the land may be appointed. In any event, the respondents are closely related to Togalima, and as previously noted, the appointments of the leveki were not challenged in the Court and are binding on all parties. This is not a ground for removal of the leveki.
[53] I am satisfied that the works already carried out on the land are within the powers of the leveki as set out in s 15(1) of the Land Act. I also accept that the works have been undertaken legally and with requisite consents. In relation to the proposed dwelling the respondents have said that this is accommodation for the wider magafaoa who reside outside of Niue, and in my view this project is within the powers of the leveki magafaoa.
[54] The main question is whether the leveki have met their obligations to consult with the magafaoa pursuant to s 15(2) of the Land Act.
[55] The respondents have provided details of three consultations they have undertaken since 2013 with wider magafaoa members numbering more than 70 persons, in both Niue and New Zealand. These consultations have supported the actions of the leveki and their continued appointment.
[56] The applicant has also filed minutes of meetings with other magafaoa members criticising the actions of the leveki, with smaller numbers involved.
[57] The respondents acknowledge that they have not directly consulted the applicant, other than the meeting facilitated by the Court. Their view is that Niuean custom does not require it because the adoptive relationship is too distant, she has not contributed to the maintenance of the land and she has distanced herself from the magafaoa through her actions.
[58] Section 15 of the Land Act provides for consultation with magafaoa members in Niue and elsewhere under Niuean custom. Because Niuean custom is inclusive not exclusive, the respondents must ensure that the applicant has an opportunity to participate in future consultation about the land. However, for the purposes of this application I do not regard the failure to specifically consult the applicant to be sufficiently serious to warrant removal of the leveki.
[59] In all other respects the leveki have discharged their duties, and the lack of consultation with the applicant must be seen in the context of the acrimonious relationship between the parties.
[60] The applicant’s claims that the respondents are not of the magafaoa of Togalima is also inconsistent with Niuean custom. The respondents have a close blood connection with Togalima, through his brother. They cared for Togalima in his old age when there was no other family in Niue to care for him, and they have occupied and cared for the land following his death.
[61] In view of the conclusion reached on the application to remove the leveki, there is no need to appoint a new leveki.

Injunction

[62] In view of the conclusions I have reached on the substantive applications, I do not consider there is a serious question to be tried.

Decision

[63] I make the following orders:

• (a) The application pursuant to s 47(1)(a) of the Niue Amendment Act is dismissed.
• (b) The application for the removal of the leveki mangafaoa is dismissed.
• (c) The application for the appointment of a new leveki mangafaoa is dismissed.
• (d) The interim injunction application is also dismissed.

Pronounced at 4:00pm in Christchurch on the 10^th of September 2019.

S F Reeves
JUDGE

^[1] 1 Land Court Minute Book 34.

^[2] N3/32.

^[3] Adoption Order, dated 14 October 1929.

^[4] 3 Land Court Minute Book 48.

^[5] 15 Land Minute Book 291-292.

^[6] N3/32.

^[7] 20 Land Minute Book 171.

^[8] Koligi v Iakopo [2017] NUHC 1; Land Division 11213 (12 October 2017).

^[9] Jacobsen v Vase [2012] NUHC (20 March 2012).

^[10] Palalagi v Talafasi - Part Toloagamotu, Section 7, Block I, Hikutavake District [2014] NUHC 2 (30 January 2014).

^[11] Roseneath Holdings Ltd v Grieve [2003] NZCA 302; [2004] 2 NZLR 168 (CA) at [35] cited in Palalagi v Talafasi - Part Toloagamotu, Section 7, Block I, Hikutavake District [2014] NUHC 2 (30 January 2014).

^[12] Klisser Farmhouse Bakeries v Harvey Bakeries Ltd [1985] NZCA 70; [1985] 2 NZLR 129 cited in Talagi v Puletama [2016] NUHC 1 (20 January 2016)..

^[13] N3/32.