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Heimuli v Kingdom of Tonga [2007] TOCA 2; AC 06-2006 (20 July 2007)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

AC 06/2006

BETWEEN:

SIONE NGANA KI HA’ANGANA HEIMULI
also known as KAIVAI HEIMULI
Appellant

AND:

KINGDOM OF TONGA
Respondent

Coram : Burchett J
Salmon J
Moore J

Counsel:
Mr L. Niu for the Appellant
Ms L. Simiki for the Respondent

Date of hearing : 17 July 2007.
Date of judgment: 20 July 2007.

JUDGMENT OF THE COURT

[1] This appeal is brought from a judgment in proceedings which were initiated by a writ of summons dated 3 October 2005, with a statement of claim attached. That statement of claim alleged that the plaintiff (now the appellant) was the heir to certain lands (town and tax allotments) of his deceased father’s uncle (also deceased), one Manitisa Heimuli, who had no legitimate child, and thus no son capable of succeeding to his lands. It was further alleged that, after the deaths of Manitisa Heimuli’s widow, one Susana Heimuli, and of the plaintiff’s grandmother, Milika Heimuli, the plaintiff, as heir, lodged an affidavit at the Ministry of Lands claiming a transfer of the lands of the deceased; but one Viliami Hurrell had also lodged an affidavit making the same claim on his own behalf.

[2] The pleading went on to explain how it had come about, as the plaintiff claimed, that these two inconsistent applications had been lodged with the Ministry of Lands. It was alleged that Viliami Hurrell was an illegitimate son of Susana Heimuli who had not been fathered by Manitisa Heimuli, but by another man. He had been about five years old when Manitisa Heimuli married his mother and had never, so it was alleged, been known by the name Heimuli but always as Viliami Hurrell, and his wife and children were also known by the name Hurrell. Nevertheless, inquiries at the Ministry of Lands had revealed that Viliami Hurrell had produced a birth certificate showing him as the legitimate son (that is, legitimised by their marriage) of Manitisa and Susana Heimuli. Further details of registrations relating to Viliami Hurrell’s birth and the question whether he had been legitimised, as well as certain alleged irregularities in respect of several relevant registrations, were pleaded. Finally, it was pleaded that Viliami Hurrell had died in 2003, and his widow and children had not responded to a request to rectify the allegedly irregular birth certificate.