Home | Databases | WorldLII | Search | Feedback High Court of Niue

Kalauni v Talagi [2018] NUHC 4; Land Division 11516 (4 September 2018)

IN THE HIGH COURT OF NIUE
(LAND DIVISION)

App No. 11516

11517

11530

UNDER Sections 10 and 14, Niue Land Act 1969

IN THE MATTER Part Lalosiale Block 1, Makefu District

BETWEEN ATIANA MATAIFI KALAUNI

Applicant

AND VIVALIATAMA TALAGI

Respondent

Hearing: 14 November 2017

Appearances: T Sioneholo for Atiana Kalauni
V Talagi, in person

Judgment: 4 September 2018

DECISION OF JUSTICE S F REEVES

[1] This decision relates to an application filed by Atiana Kalauni on behalf of the Tauetule family for determination of title and appointment of leveki mangafaoa for the land known as Part Lalosiale, in the Makefu District.
[2] The applicant seeks a determination of title in favour of the Tauetule family, naming the common ancestor Ahoua Tauetule Hekepe, and appointment of Mr Togia Sioneholo as leveki for the Tauetule and Manogitagaloa (Uini) families.
[3] Following cyclone Heta in 2004, the Tauetule family have no home in Niue as their house at Lalosiale was damaged beyond repair. The purpose of this application is for the family to rebuild a home on the same piece of land for the benefit of the whole family.
[4] Vivaliatama Talagi appeared as an objector to the application on behalf of the Falemaka family.
[5] Mrs Talagi says the Falemaka family have a stronger claim because the applicant’s family are only connected to Mulio, the source of the land, through marriage. She also stated that Ikimana, the grandson of Mulio had in fact gifted the land to his daughter Hakatagaloa.

Background

[6] This application first came before Justice Isaac on 4 April 2017 but was adjourned as the objector was unable to be present due to family matters.
[7] The application then came before me on 14 November 2017 when I heard evidence from the parties. I reserved my decision, and issued directions allowing further time for filing of submissions by the parties.

Case for the Applicant

[8] Togia Sioneholo, appearing for the applicant, submits that the genealogy provided to the Court supports the Tauetule family’s connection to the land. The land in question is part of a larger area known as Lotouli which is traced back to Mulio. The Tauetule family, including both parents of Tauetule are descendents of Mulio.
[9] Mr Sioneholo notes that, while the area is generally known as Lotouli, the Tauetule family refer to the area which they consider to be their home land by the name ‘Lalosiale’. Title has already been determined for the adjoining properties, granted in favour of the Vileo Patumaka family to the north and the Panikitau family to the south. Both these families also descend from Mulio.
[10] Furthermore, the Tauetule family have continually occupied the land at Lalosiale for over 60 years. This is evidenced by their house which was built on the land in the early 1960s as part of the government’s Hurricane Scheme, but which was destroyed by tropical cyclone Heta in 2004.
[11] The applicant summarised the history of the Tauetule family’s connection with the land. Faio’s first husband, Hekepe, died in January 1920 at Lotouli, Makefu. Faio subsequently married her second husband, a man from Namukulu. Faio went to Namukulu to live with her second husband and took her children from her first husband with her. After being absent for some years, the family returned when Tauetule, Faio and Hekepe’s son moved back to Lotouli, Makefu, in approximately 1951 with his family.
[12] The Mulio family showed Tauetule where his parent’s share of the land was at Lotouli on the eastern side of the road. Tauetule initially built a tin hut where the family lived until it was destroyed by a cyclone in 1960. Subsequently he built his ‘hurricane house’ on the same site in 1961 – 1962. This is the house which was destroyed by cyclone Heta in 2004
[13] Mr Sioneholo also points out that there is no evidence of any other claim to the land being raised from the time when the Tauetule family returned to Lalosiale in the early 1950s until the very late 1950s and early 1960s when the cyclones destroyed their home. During this time, the Tauetule family enjoyed exclusive occupation of the land.
[14] In support of this application are letters from various members of the Tauetule family as well as letters from members of the Mulio family confirming that they grew up with members of the Tauetule family at Lalosiale, and the Tauetule family therefore originated from the land.
[15] The applicant also provided several documents as evidence to support her assertion of the Tauetule family’s connection with the land. This includes a letter written in 1939 by Ikimana (the objector’s grandfather) which specifically records that Faio (Tauetule’s mother) and her sister Peletai have shares in the land at Lotouli on the eastern side of the road.
[16] Also included are various government records from the Birth, Death and Marriage registers which record Lotouli as the place of residence of both Faio and Hekepe (Tauetule’s parents), Hekepe’s place of death and the birth place of several of Faio’s children, including Tauetule.
[17] Mr Sioneholo rejects any suggestion that the Tauetule family came to the land at Lotouli/Lalosiale as strangers and suggests that, if this was the case, such an objection would have been raised many years ago when they returned in the 1950s and built their first house there.
[18] Additionally, Mr Sioneholo argues that the objector is incorrect in asserting that the Tauetule family came to Lalosiale by marriage. While the Tauetule family lived in Namukulu for some years, the genealogy shows that both Hekepe’s and Faio’s families originated from Lalosiale, that they lived there until after Hekepe’s death, and then the family returned there in later years. The family’s absence from the land was due to Faio’s remarriage to a man from Namukulu, but the evidence supports that the senior members of the Lotouli family recognise Faio’s share in the land.
[19] In this regard, the applicants refer to a letter from Sene Tuineau of the Ikimana family. Sene Tuinea also appeared in Court to present evidence, and confirmed that Ikimana provided a small part of the block for the Tauetule family. The area given to Tauetule was delineated with coconut tree plantings and is now distinguished by the remains of their foundation. Sene notes that the Tauetule family have continued to use and occupy the land even after their house was destroyed, particularly when they visit Niue.
[20] Sene Tuineau stated to the Court that the Tauetule family are entitled to use that area of land set aside for them and his cousin, Vivalia Talagi, has no right to use this land. Furthermore, the land which Ikimana gave to his daughter Hakatagaloa, which has now passed on to her daughters Wendy and Christina, is the block of land Fuaaloalo, not the land at Lotouli. Sene asserts that the Ikimana family have no entitlement to the Lotouli land.
[21] The applicant notes in final submissions the problems with the objector’s claims:

1. First, the letter referred to by the objector to claim that Faoi and her sister Peletai only have a share on the land Lotouli is about the land on the eastern side of the road; this is the very land that they are seeking title to in this application.
2. Second, the objector provided no records to substantiate their claim other than support from their immediate family and cousins.

100. Third, the Tuinea (Ikimana) family put forward a strong objection against the objector’s claim through Sene Tuinea’s letter, and evidence in court.

4. Fourth, the Ikimana family never communicated their claim to the land in question to Tauetule or his descendants. Even when the Tauetule house was destroyed by the cyclone in 2004 and later when the land was overgrown with weeds, no-one from the Ikimana family including Hakatagaloa or any of her children claimed the land or stopped Tauetule’s daughter, Sinaia Vemoa, and her husband from cleaning up the section when they returned to Niue in 2007, 2008 and 2009.
5. Fifth, there was no evidence given about the objector’s claim to this land when title was determined to the adjacent sections.
6. Lastly, the Hakatagaloa family has a hurricane house at the back of this land to the south east and should not deny the Tauetule family their claim to part of the Lotouli land to build their house on. The objector also suggests that it is possible that Ikimana in his old age verbally told Hakatagaloa that she could have the land even after he had given the land to Faoi as hers in his letter of 1939.

[22] Regarding the foundations of the house, the applicant acknowledged under cross-examination that there is currently no foundation on the land, but said that the house was only partly destroyed during the cyclone and the tuaga fale still existed on the land, but was later removed by their uncle, Tom Ricky Tauetule for health and safety reasons, without their knowledge.
[23] In terms of the application to appoint a leveki, the applicant proposed Mr Togia Sioneholo for this appointment as he lives in Niue permanently. Atiana Kalauni noted that they held meetings with the mangafaoa in New Zealand and they have the majority support from the family for these applications.

Case for the Objector

[24] Vivaliatama Talagi opposes the application on behalf of the Falemaka family (also referred to as the Ikimana family). The objector claims that the applicant’s family do not have as strong a right to the land because they are only connected to Mulio through marriage and the land which they had originally built their first house on was a gift from Ikimana.
[25] The objector submits that their grandfather, Ikimana Mataapule, was given the right to the land by his grandfather, Mulio, as he was the only one who looked after the land. Ikimana was therefore the only person who had authority passed down from Mulio to decide who could live on the land.
[26] Before Ikimana died, he gave permission to his daugher, Hakatagaloa, to build a house on the land for her family. He also granted adjacent land to her brothers, Panikitau and Tuinea. The objector argues, contrary to the applicant’s assertion, that Ikimana’s wishes prior to his death did not mention anything about Tauetule being given the land.
[27] The Falemaka/Ikimana family have lived on this land for nine generations and it is rightfully theirs. When Tauetule built his house there in the early 1950’s, he did it without their permission from the rightful owners. The objector submits that it was Hakatagaloa’s brother, Panikitau, who told Tauetule that he could build a house on the land. In doing this, Panikitau completely disregarded his sister, the rightful owner of the land.
[28] The applicant is incorrect to say that no-one opposed Tauetule when he first built a house on the land. Vatasi Mohetu, Ikimana Mataapule’s cousin, wrote to the Justice Department in 1959 to ask them to stop Tauetule building the hurricane house on his family’s land.
[29] The objector submits that the Tauetule family have their own land at Lotofonu and Avatu next to Fanohala and requests that they build their house there, instead of at Lotouli on the Falemaka family’s land.
[30] Vivaliatama Talagi also filed various letters of support from members of the Falemaka family in oppostion to Atiana Kalauni’s application. This includes a letter written by Wendy Falemaka, Hakatagaloa’s daughter, with signatures from Hakatagaloa’s other children. The letter states that, while they accept that Faoi, Hekepe and Hakatagaloa are all descendants of Mulio, the Hakatagaloa family have a stronger historical connection to the land. They also argue that it is clear from a letter written by Vatasi that Faio only owned a single coconut tree on the land, while Vatasi owned the rest of the coconut trees and the land itself. Therefore, if the Tauetule family are to claim part of the land, their claim should be proportional to the area of one coconut tree.
[31] Also in support of the objector’s claim, Wendy Falemaka submitted that it is well known in Niuean custom that if a foundation is completely cleared, the family have forfeited their right to build on it. Following the cyclone in 2004 the house was completely cleared, including the rubble from the foundation. Wendy Falemaka therefore argues that the Tauetule have abandoned their right to the land. Furthermore, she was told that the land had been given to Tauetule and Uini to live on but that there was no agreement to permanently transfer this land to them.
[32] Finally, Christina and Wendy Falemaka argued in further submissions that, since their house was destroyed in 2004, the Tauetule family are now seeking to title the land which will have the effect that the Ikimana family will no longer have a say about what happens to their land. Furthermore, the land was gifted for residential purposes but they have heard that the applicant’s family intend to build a commercial motel building there.

Law

[33] The Court has the power to determine title to land pursuant to the provisions set out in Part 2 of the Land Act 1969 (the Act). Section 10 provides:

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 has to take account of matters including the genealogical link to the land, occupation, use and cultivation, burial sites on the land, and whether the applications are supported by the mangafaoa.
[35] Section 12 provides further instruction for determining ownership of any land:

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.

[36] Following determination of title and ownership of the land, the requirements for the appointment of a leveki mangafaoa are set out in s 14:

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.
[37] Notably, s 14(5) notes that a leveki does not have to be part of the mangafaoa but must reside in Niue and be suitably familiar with the mangafaoa and the history of the land.

Discussion

[38] It is common ground that Mulio is the source of the land, and it is clear to me that all parties involved are descended from Mulio. The core disagreement between the parties is whether the Falemaka family represented by Mrs Talagi has a stronger claim to the land, than the Tauetule family.
[39] Mrs Talagi earlier claimed that the Tauetule family only came to the land through marriage. In terms of genealogy provided by the applicant, the genealogical tables clearly show that the Tauetule family are descended from Mulio. This now appears to have been accepted by objector Wendy Falemaka in submissions filed following the hearing.
[40] Numbers of documents have been filed by the parties in support and opposition to the claim. The applicant submitted births, deaths and marriages documents that establish Faoi and Hekepe were living on the land at Lotouli as early as 1910. Hekepe’s death certificate from 1920 records his kaina and maga as Lotouli.
[41] A key document is Ikimana’s letter of 8 May 1939 which states:

...Fanuae and his sisters did not have any control over the land on the eastern side of the road which is known as “LOTOULI”. That side is owned by Mulio, Unupa, Faoi, Peletai, Hegaiki and Vatati.

[42] In the letter Ikimana recognises the ownership of Faoi and her sister Peletai in Lotouli during the time when it is likely that Faoi was living in Namukulu after the death of her first husband.
[43] This is important because Mrs Talagi has submitted that Ikimana gifted the land to his daughter Hakatagaloa before his death. Wendy Falemaka also submitted that it was Hakatagaloa’s brother, Panikitau, who told Tauetule that he could build a house on the land, but that there was no agreement to permanently transfer this land to them. Both these alleged actions post-date Ikimana’s letter of 1939.
[44] There is also the letter of Vatasi from 1959 that disputes Tauetule’s intention to build on the land. Vatasi says that even though Faoi had a house on the land, she had no entitlement, because the land belonged to his mother, Mokahekafa. Again, this contradicts the earlier assertion by Ikimana of Faoi’s interest. There is no evidence of any reply by the Justice Ministry, but Tauetule was not subsequently prevented from building his hurricane house.
[45] There is also the evidence from Ikimana’s son, Mr Sene Tuinea, that the Falemaka family are mistaken about the land gifted to his sister Hakatagaloa, which he says is Fuaaloalo. Mr Tuinea also strongly supports the Tauetule’s application, and says that his father gave the land at Lotouli to the family.
[46] My assessment is that Ikimana’s letter is the most reliable account of Faoi’s ownership in Lotouli. Because his statement was made in the context of a wider dispute, it was essentially uninterested in relation to her interest, and was setting out the ownership of Lotouli as he understood it at 1939. This is confirmed by his son Tuinea.
[47] The Falemaka family have not produced any documents or other evidence which would cause me to disregard Ikimana’s statement of 1939. The only evidence of a gift by Ikimana to Hakatagaloa, are the statements of Mrs Talagi and her family members. As suggested, it is possible that Ikimana in his old age, did not recall Faoi’s interest, but the evidence shows that in 1939 he had a clear view of the matter.
[48] Tauetule’s house was built on his mother’s land in the early 1950s, and stood there until it was destroyed by cyclone Heta in 1974. The evidence filed by family members in support of the application refers to their occupation and use of the land, including the house, other buildings nearby, and cultivations.
[49] In terms of maintaining their right to occupy land, there is evidence that the Tauetule family have returned to Niue on several occasions to clear the land. Mr Sene Tuinea also says that he has tidied the land on their behalf. There is no evidence that other claimants have disputed or attempted to claim the land since the hurricane house was built.
[50] Wendy Falemaka also claims that the land has been abandoned, and the right to build has been forfeited because the foundations of the hurricane house were removed. This allegation, in my view, appears to concede prior ownership by Tauetule. The applicant has responded that this was done without their knowledge by their uncle. In the circumstances, I accept that the Tauetule family has made all reasonable efforts to maintain their connection, and have not abandoned the land at Lotouli.
[51] When all the evidence is considered, I conclude that the applicant’s claim to Part Lalosiale, Block 1, Makefu District has more merit and is supported by the evidence of genealogy, ownership, and occupation. I therefore find that the common ancestor to this land is Ahoua Tauetule Hekepe.
[52] I turn now to the appointment of leveki mangafaoa. The applicants have filed minutes of a meeting of the Tauetule and Manogitagaloa families on 16 July 2016, at Glen Eden, Auckland. The families unanimously agreed to appoint Mr Togia Sioneholo as leveki mangafaoa. He has consented to the appointment.
[53] I am satisfied that Mr Togia Sioneholo complies with the provisions of s 14 Niue Land Act 1969, and I now appoint him as leveki mangafaoa of the subject land.

Dated at Wellington on this 4^th day of September 2018.

_________________
S F Reeves
JUDGE