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Asekona, In re [2020] NUHC 4; Application 11237 (11 May 2020)

IN THE HIGH COURT OF NIUE
(LAND DIVISION)

APPLICATION NOS: 11237, 11238, 11318, 11319, 11320, 11321, 11322, 11323, 11324 & 11325


UNDER Sections 10 and 14, Niue Land Act 1969


IN THE MATTER of Part Togalupo Seaside


BETWEEN HALO ASEKONA

Applicant


AND TUTULI HEKA

Applicant


AND FILIENIKE MISIKEA

Applicant


Hearing: 11 March 2019 (Land Minute Book 20, Folio 245)


Judgment: 11 May 2020


DECISION OF CHIEF JUSTICE C T COXHEAD


Introduction

[1] This decision concerns several competing applications filed by Halo Asekona, Tutuli Heka and Filienike Misikea for determination of title and appointment of leveki mangafaoa for the land known as Part Togalupo Seaside.
[2] There is dispute between the parties over who the common ancestor for the land ought to be, whether the land should be kept as a whole or divided into four parts as per the Provisional Plan (11237) and who should be appointed as leveki mangafaoa.
[3] Additionally, an objection was received by Dawn Bischof. She requested that a small area within Togalupo where her great-grandfather is buried be excluded from titling all together and remain untitled.
[4] After several adjournments at the request of parties, I heard this matter on 11 March 2019 and reserved my decision. This judgment sets out my final determination on the matter.

Background

[5] Part Togalupo Section 97 (seaside) is located north of Alofi. The Provisional Plan 11237 separates the land into four blocks of 904m2, 496m2, 2589m2 and 2651m2.[1] There is a further application noted on the Provisional Plan that seeks to have the whole area remain as one 6640m2 block. For ease of reference I have attached the Provisional Plan to this decision.
[6] A number of applications concerning the land were received between 2014 and 2015. It is useful to set out the details of each application:
[7] There is a further application on file, dated 23 November 2015, by Berry and Halo Asekona to determine title to Togalupo with Foutoa named as the common ancestor. This application does not appear to have an application number.
[8] A Land Investigation Report was filed with the Court on 11 May 2015 and noted the land ownership is disputed by related families.

Withdraw of applications

[9] On 13 March 2018, a withdrawal notice was received by Tutuli Heka. He sought to withdraw his application for determination of title which named the tupuna as Misiko and himself as leveki mangafaoa. The difficulty here is that the Court does not have an application on file seeking to have Misiko named as the common ancestor.
[10] Tutuli Heka also sought to withdraw his joint application with Filienike Misikea to determine title and appoint leveki, asking for his and his fathers (Sioke Heka) names to be removed. While Tutuli Heka does not state the exact application number it must be assumed he is referring to applications 11320 and 11321 which are the only applications where he is the joint applicant with Filienike Misikea. These are joint applications and therefore the Court needed to hear from both applicants. One applicant cannot withdraw the application on behalf of both applicants unless they have the other applicant’s agreement. To confuse matters even further, Tutuli Heka appeared at the hearing and spoke in support of the applications and in opposition to Halo Asekona’s application. Given these factors, I proceed on the basis that the joint applications have not been withdrawn.

Procedural history

[11] This matter first came before me on 10 November 2016.[2] However, it was adjourned at the request of Halo Asekona, who asked that the matter be postponed until 2017 to allow mangafaoa time to travel from Samoa.
[12] The hearing was again adjourned at the request of Dawn Bischof, who in a letter to Isaac J dated 9 March 2018 requested that the hearing be held in 2019 to allow all parties to attend. In that same letter, it appears that Isaac J directed the mangafaoa to have a meeting and when they were able to make a decision they were to write collectively as a mangafaoa to the Court confirming their collective decision. It appears the meeting was facilitated by the then Deputy Registrar of the Court. I was not able to ascertain from the file the outcome, if any, of that meeting.
[13] A hearing was held on 11 March 2019.[3] After hearing from parties, I reserved my decision to determine title and appoint leveki mangafaoa for Part Togalupo Section 97 (seaside).

Submissions of Parties

Halo Asekona

[14] A number of documents have been filed by the Asekona mangafaoa. In the 23 November 2015 application, Berry and Halo Asekona submitted that all five children of Tupuna Foutoa were apportioned land but this particular parcel of land was only apportioned to two of Foutoa’s sons, Panapa and Iakopo, and his daughter Malamatu. The applicants argued Foutoa’s other sons, Ikipule and Manuao had their own apportioned seaside lands. The application also set out details of the customary usage of the land and a list of tupuna buried on it. They submitted that the land was set aside mainly as a final resting place - burial grounds. They also submitted that the area should be one block and not divided into four sections.
[15] Halo Asekona explained in a letter received on 11 March 2019 that he is a descendant of Foutoa through his mother, who is a descendant of Panapa and his father, who is a descendant of Iakopo. However, in this submission it was also claimed that Foutoa apportioned his land with Togalupo to Panapa, Omahi lands to Iakopo, Togalupo Uho lands to Manuao, Vakoto lands to Ikipule and Malamatu being the daughter did not inherit any land, which contradicts the above 23 November 2015 application.
[16] Halo Asekona has strongly objected to Dawn Bischof’s claim and expressed he and his mangafaoa do not wish for her to be a leveki of the land. They have also disputed Dawn Bischof’s claim genealogically, saying her great-grandfather was an illegitimate child in a letter received by the Court on 14 March 2018. This is an interesting submission given there are no applications with the Court to appoint Dawn Bischof as a leveki.
[17] The Land Investigation Report of 11 May 2015, noted that the Asekona family has knowledge of who was buried on the area and the history of the land.

Tutuli Heka and Filienike Misikea

[18] Tutuli Heka and Filienike Misikea filed a submission on 4 November 2015, objecting to Halo Asekona’s application, and seeking leave to adjourn proceedings. Attached to the submission were minutes of a meeting of the Mangafaoa Togalupo of 7 June 2015.
[19] It was noted that Tutuli Heka put forward the applications on the basis of the land being divided into four titles. The central point in his submissions was that the land had been customarily apportioned and inherited by four tupuna. Therefore, he argued that it should be titled in accordance with its customary apportionment with each block having its own common ancestor. Although I do note that two of the applications he is associated with seek Foutoa as a common ancestor.
[20] Filienike Misikea submitted she was against Foutoa being named the common ancestor and instead wished the land to be divided into the four blocks with different matua.
[21] Filienike Misikea and Tutuli Heka both referred to a family meeting which showed descendants of the tupuna opposed the Asekona application and wished for the matter to be dealt with by the Land Commissioners rather than the Court.
[22] With regards to the areas as noted in the Provisional Plan 11237 they say: the land that runs from Togalupo sea track to the north of it comprising approximately an area of 2651m2 was apportioned to and inherited jointly by Sioke Fala Heka and Mafa Kulukulu Pikiga; the area of approximately 2589m2 was apportioned and inherited by Euini; the area of approximately 496m2 was apportioned and inherited by Niutolu; and the area of approximately 904m2 was apportioned and inherited by Mafa Kulukulu Pikiga.
[23] It is noted that while it is claimed that the area of 2589m2 should be apportioned to Euini and the area of approximately 496m2 be apportioned to Niutolu in the applications before the Court the applicants ask that the common ancestor for both of these areas be Foutoa.
[24] The Land Investigation Report of 11 May 2015, noted Filienike Misikea showing the boundaries and naming her grandmother, Mafa, Niutolu, Misiko and Euini as being the people who lived on the land. The Report also notes that Tutuli Heka and Filienike Misikea as knowing the history and background of the land and who was buried on the land.
[25] Tutuli Heka and Filienike Misikea stated that Halo Asekona has no right to claim the areas in the Provisional Plan as they were the ones that had maintained the land, such as by clearing the roadside area.
[26] Tutuli Heka also disagreed with the five leveki proposed by Halo Asekona as he did not believe they were representative.

Dawn Bischof

[27] An objection to the Halo Asekona application by Dawn Bischof was received by the Court on 14 March 2018. A further objection was received on 10 March 2019. She wished for a small area opposite Togolupo section 97 where her great grandfather, Misiko, is buried to remain untitled. She offered to accompany a surveyor to point out the exact area if required.
[28] Dawn Bischof also asked that a person or persons be appointed to look after the gravesites. She has emphasised her strong moral and family obligation to Misiko to ensure his lands are maintained for his descendants. At the 2019 hearing, it was explained that this is generally the role of a leveki mangafaoa, but she said she did not want a formal appointment as such. The possibility of an informal leveki without court appointment was raised. Dawn Bischof also spoke in support of Tutuli Heka at the hearing.

Mangaohetau Passells

[29] Mangaohetau Passells wrote a letter to the Court supporting Halo Asekona’s application to appoint the five leveki to the land. He said he is connected to the land through Panapa. He also stated that he does not want Dawn Bischof to be appointed as a leveki mangafaoa. His belief was that Dawn Bischof was “double-dipping”, as her grandfather’s request for land had been turned down by Iakopo.

Tina O’Halloran

[30] Tina O’Halloran wrote a letter to the Court on 10 February 2018, noting her preference is for the matter to be heard by the Court, not the Land Commissioners.
[31] At the 2019 hearing, Tina O’Halloran expressed that she wanted the land kept as one block. She explained that Foutoa was gifted t333his land from the King, so it never belonged to his parents or siblings. She supported the five leveki proposed by Halo Asekona. Tina O’Halloran also submitted that Dawn Bischof’s grandfather was not from the land.

Maru Talagi

[32] At the 2019 hearing, Maru Talagi explained that he thought appointing Foutoa as the common ancestor was too exclusive, as Foutoa’s brothers would be excluded. He believed the common ancestor should go further up than Foutoa, or alternatively, that the land should be divided into sections, with each having its own common ancestor and leveki mangafaoa.

Law

[33] The Court has the power to determine title to land pursuant to s 10 of the Land Act 1969 (“the Act”):

10 Determination of title

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

[...]

[34] In determining title to land and declaration of the common ancestor, the Court should take account the genealogical link to the land, occupation, use and cultivation of the land, burial sites on the land, and whether the applications have the support of the mangafaoa, among other matters. Additionally, in determining ownership of land, s 12 of the Land Act provides:

12 Ownership determined by ascertaining and declaring Mangafaoa

The Court shall determine the ownership of any land by ascertaining and declaring the Mangafaoa of that land by reference to the common ancestor of it or by any other means which clearly identifies the Mangafaoa.

[35] Following determination of title and ownership of the land, leveki mangafaoa can be appointed under s 14:

14 Appointment of Leveki Mangafaoa

(1) When the ownership of any land has been determined any member of that Mangafaoa who has 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.
[36] Notably, s 14(5) notes that a leveki does not have to be part of the mangafaoa, but they must reside in Niue and be suitably familiar with the mangafaoa and the history of the land.[4]

Should all of the land be titled?

[37] Dawn Bischof objected to the titling of a small area opposite Togalupo section 97 where her great grandfather, Misiko is buried. She wishes for it to remain untitled. There is some uncertainty as to the location of that area, but Dawn Bischof did offer to accompany a surveyor to point out the exact area if required.
[38] Dawn Bischof arguments are a bit contradictory in that she wants a person or persons to be appointed to look after the gravesites, essentially similar to the role of a leveki mangafaoa, but does not want the land titled and leveki mangafaoa appointed.
[39] The Court will look to determine title for the whole area, given the number of applications, the number of people who support the titling of the land and the fact that Dawn Bischof does wish to have someone appointed to look after the gravesites. In order to appoint a leveki mangafaoa, being a person or persons to look after the area including the gravesites, the Court firstly needs to determine title.

Who should be the common ancestor?

[40] Historically, it appears the seaside area was mainly used for burials. There are a number of grave sites in the area. There was and is also some planting, use of the area for harvesting selie, pao and pomea, use for animals and tracks to the sea. Parties identified coconut trees, a pigsty and old sea tracks. While there appears to have been use of the area, there does not appear to have been any occupancy of the area, historical or recent. From the evidence before the Court, there is currently no one living in the area. As Ms O’Halloran submitted on behalf of the applicant, Halo Asekona, they do not want to see anyone live on the seaside area as that is a sacred place.
[41] In contrast, the lands opposite Part Togalupo (seaside) have a number of houses on a number of sections.
[42] There appears to be a general consensus that the lands noted in the Provisional Plan 11237 being the lands of Part Togalupo (seaside) were once the lands of Foutoa. Foutoa is seen as the source of these lands.
[43] Application 11237 seeks determination of title with Foutoa as the common ancestor. Application 11322 relates to part of the block comprising 496m2 and asked that Foutoa be determined as the common ancestor. Application 11324 for the area of 2589m2, seeks determination of title with Foutoa as a common ancestor. There is also the further application dated 23 November 2015, which I have noted is in the file but does not appear to have an application number, that also seeks Foutoa be named as the common ancestor.
[44] While there is some acceptance by all applicants that the lands once derived from Foutoa, and most of the applications seek Foutoa to be determined as the common ancestor, there is then the request that the area of 2651m2 be apportioned to Sioke Fala Heka and Mafa Kulukulu Pikiga, the area comprising approximately 2589m2 be apportioned to Euini, the area of approximately 496m2 be apportioned to Niutolu and the an area of approximately 904m2 be apportioned to Mafa Kulukulu Pikiga. Hence, application 11318 for the area comprising of 904m2 seeks determination of title with Mafa Kulukulu Pikiga to be determined as the common ancestor. Application 11320 for the area of 2651m2 seeks to have Sioke Fala Heka and Mafa Kulukulu Pikiga determined as common ancestors.
[45] From the genealogy that is on file Sioke Fala Heka, Mafa Kulukulu Pikiga, Euini, and Niutolu are all descendants of Foutoa.
[46] Mr Maru Talagi submitted that appointing Foutoa as a common ancestor was “too exclusive”. He contended that Foutoa’s brothers would be excluded. However, arguments put before the Court by everyone, except Mr Talagi, is that Foutoa is seen as the source of these lands and the mangafaoa claiming interest in these lands descend from Foutoa. It was claimed Foutoa received the lands from the King, therefore they never belonged to his parents or siblings.
[47] On the other side of the road, across from Part Togalupo (seaside) are other Part Togalupo lands. Of those lands that have been titled they have either Foutoa as a common ancestor or a descendant of Foutoa as the common ancestor.

Should the land be divided in four blocks as noted in Provisional Plan 11237?

[48] There is a general consensus that Foutoa was once the source of the land. However, there is no consensus, and in fact no agreement, with regard to the four proposed blocks as noted on the Provisional Plan 11237.

Historical connection to the land

[49] There are some features of these applications that are common to applications for determination of title. Firstly, both parties claim customary apportionment of the land, but when that occurred and how that happened is difficult to ascertain. Second, this is one of those common situations of where people not resident on Niue make an application for titling and that application is opposed by those resident on Niue or where a person resident on Niue makes application and it is opposed by people who are not resident on Niue. A home and away battle. Third, there are submissions from those whose ancestors once used the land which are opposed by those who currently use the land. Past users and current users. Fourth, the mangafaoa cannot agree.

Customary apportionment

[50] In the application received by the Court on 23 November 2015 Berry Asekona, Halo Asekona and mangafaoa submitted that the land was apportioned to two of Foutoa’s sons, Panapa and Iakopo, and his daughter Malamatu. However, in the submission of 11 March 2019 they claim that Foutoa apportioned his land with Togalupo to Panapa, Omahi lands to Iakopo, Togalupo Uho lands to Manuao, Vakoto lands to Ikipule and Malamatu being the daughter did not inherit any land. While their two submissions are inconsistent, the point I take from these submissions is that they submit that the Part Togalupo (seaside) derives from Foutoa and was apportioned to the children of their tupuna. How, when and on what basis customary apportionment occurred is unclear.
[51] Tutuli Heka and Filienike Misikea also argued that the land was customarily apportioned as inherited by four ancestors. At the hearing, Tutuli Heka argued that each block should have its own common ancestor. While that is inconsistent with what is noted in some of the applications where Foutoa is named as the common ancestor in two of the four applications, Tutuli Heka named the four families in the notice of opposition to the application of Halo Asekona as Sioke Fala Heka, Mafa Kulukulu Pikiga, Niutolu, and Euini. Similar, to the situation of customary apportionment argued by Halo Asekona - how, when and on what basis customary apportionment occurred is unclear.

A home and away battle

[52] What is also apparent is that many of the Asekona mangafaoa have left Niue with many of them residing in New Zealand. The applicant Halo Asekona lives in New Zealand. In his submission of 11 March 2019, Halo Asekona indicates that their mangafaoa have lived away from Niue for some time when submitting that their Mamatua wanted to return home to settle their affairs for their descendants but were unable to.
[53] Tutuli Heka and Filienike Misikea both reside on Niue.

Past use and more current use

[54] The Asekona mangafaoa provided submissions of historical usage, food gathering and planting on the land. They also submitted regarding ancestors that are buried in the area. While parts of the evidence submitted relate to Part Togalupo lands adjacent (across the road) to the Part Togalupo seaside lands they do provide a historical context and history of the land.
[55] Tutuli Heka and Filienike Misikea also provided evidence of use of the land and where ancestors were buried. As noted, Tutuli Heka named four families, Sioke Fala Heka, Mafa Kulukulu Pikiga, EEuini, and Niutolu. These appear to be the people who have had recent use of the lands and/or whose mangafaoa currently use the land.

Mangafaoa cannot agree

[56] It must be remembered that all the people involved in these applications are linked by genealogy. According to the genealogy that has been filed they all link to the common ancestor Foutoa. There is support and opposition for each application. Halo Asekona opposes the applications filed by Tutuli Heka and Filienike Misikea. Tutuli Heka and Filienike Misikea oppose the Halo Asekona’s applications. Dawn Bischof opposes Halo Asekona’s application but supports Tutuli Heka’s application and Halo Asekona opposes Dawn Bischof being appointed as a leveki.
[57] When it comes to the division of land the Court is reluctant to impose a decision where there is no mangafaoa agreement. The ideal is that determination of boundaries and division of land is made by consent with mangafaoa agreement.
[58] If the descendants of Foutoa all agreed on how the lands could be divided and the basis for that division, then Part Togalupo Seaside could have potentially been divided into four or more sections. However, that is not the situation in this case. Here there is dispute as to where the boundaries should be for these four blocks as noted in the Provisional Plan, as well as contest with regards to which descendants of Foutoa should occupy which area. The mangafaoa of Foutoa are not in agreement.

Decision

[59] From the applications before the Court it is clear that the appointment of Foutoa as the common ancestor would be inclusive and would capture all the mangafaoa who claim interest in these lands. From the evidence before the Court these lands noted in the different applications were once lands that Foutoa had guardianship over. Foutoa is seen as the source of these lands as all of the different applicants descend from Foutoa. In my view, Foutoa should be the common ancestor for Togalupo Seaside as noted in Provisional Plan 11237. The Court therefore determines the ownership of Togalupo Seaside by ascertaining and declaring the Mangafaoa of that land by reference to the common ancestor who is Foutoa.
[60] Given the lack of agreement as to the division of the area into four sections and the lack of evidence, other than the submission that it is customarily apportioned as inherited by four ancestors, the land should remain as one block for all of Foutoa’s descendants which clearly includes the mangafaoa of those seeking each of the four sections.
[61] I do note that with naming Foutoa as the common ancestor all of the Foutoa mangafaoa are automatically considered to be entitled to this area. The leveki mangafaoa, when appointed, along with the Foutoa mangafaoa may decide that different descendants from different children, grandchildren or different groupings of the Foutoa mangafaoa may care for different areas of land within the Togalupo Section 97 (seaside) block. Alternatively, the leveki mangafaoa, when appointed, along with the Foutoa mangafaoa may decide that the block will be cared for by all of the Foutoa mangafaoa together. That is for the leveki mangafaoa, along with the Foutoa mangafaoa to decide.
[62] A new Survey Plan will be required to be filed with the Court. That plan will show Togalupo Seaside as one block of approximately 6640m2.

Can the Court appoint leveki mangafaoa?

[63] There are a number of different applications for the appointment of leveki mangafaoa for the four proposed sections and the area as one block. Based on what is before the Court I cannot be satisfied that the requirements of s 14 of the Act have been meet. I am not satisfied that any of the applications are signed by members who constitute a majority of the members of the Foutoa Mangafaoa whether resident in Niue or elsewhere. Therefore, the mangafaoa of Foutoa will need to meet to elect leveki and then file the relevant applications with the Court.
[64] This decision is to be sent to all interested parties immediately.

Dated at Rotorua Aotearoa/New Zealand on this 11th day of May 2020.


_________________
C T Coxhead
CHIEF JUSTICE

[1] Plan 599, provisional book 5, page 10.
[2] Land Minute Book 20, Folio 132.
[3] Land Minute Book 20, Folio 245.
[4] Kalauni v Talagi [2018] NUHC 4; Land Division 11516 (4 September 2018) at [37].

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