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. 

[3]	The statement of claim sought relief by way of declaratory orders (but not directly a declaration that Viliami Hurrell was not the legitimate or legitimised son of Manitisa Heimuli, although there was included the conventional prayer for "[a]ny other order this Honourable Court may deem just") and relief by way of rectification or cancellation of relevant registrations. A curious feature of the proceeding was that no person was joined as a defendant representing the deceased Viliami Hurrell or as being entitled to succeed to any right upon his death which may have accrued to him upon the assumption that he was the legitimate or legitimised son of Manitisa Heimuli. 

[4]	The next step taken by the plaintiff was to file in the same proceeding an Application for Judicial Review pursuant to leave granted by the Supreme Court on 14 December 2005. It was this application which was dealt with in the judgment under appeal. The learned judge dismissed this application for judicial review. His Honour pointed out that the affidavits of persons whose evidence was put forward in an endeavour to show that Viliami Hurrell was never recognised in his family as the son of Manitisa Heimuli could not be given the weight of uncontested evidence in the normal case; this being a judicial review matter, the Court would not generally give leave to cross-examine on such affidavits, and his Honour did not consider this was an appropriate case for allowing cross-examination. There could, of course, be no answering affidavits since the persons with an interest to answer the allegations, and presumably knowledge of the facts, had not been joined as parties. In that situation, the learned judge turned to the inferences he could draw from the registrations, as to which he referred to the presumption of the regularity of official acts. 

[5]	It is unnecessary to examine his Honour’s reasoning further because the two fundamental difficulties in the case stand quite apart from any matter he was asked to decide. They are, first, the plaintiff’s failure to join the interested parties who would have constituted an appropriate contradictor, and secondly, the inconclusiveness of the registrations upon the question whether Viliami Hurrell was or was not in reality the legitimised son of Manitisa Heimuli: Maliepo v Faka’osilea & Minister of Lands [1995] Tongan LR 53, where it was held the Legitimacy Act Cap. 32, ss.3(1) and 4, operate of their own force, quite apart from registration. 

[6]	In the absence of the proper parties, counsel for the Crown, after the argument had proceeded some way, agreed that the judgment under appeal should be set aside, except as to costs, and she did not ask for costs upon the appeal. We think this attitude was entirely appropriate. Even apart from the rights of inheritance which may be in issue, a question of legitimacy should not be determined in the absence of the proper contradictor. In Morrison v Jenkins (1949) 80 CLR 626 at 640, Rich J said: 

"Indeed in a proceeding to which the child is not a party the Court has no jurisdiction to decide a question of legitimacy."

[7]	For these reasons, the orders of the Court are:

(1)	The judgment under appeal of the Supreme Court be set aside, except as to costs; 

(2)	There be no order as to the costs of the appeal. 

(3)	The proceeding brought by the writ of summons and statement of claim be listed in the Supreme Court for directions as to the joinder of appropriate parties, the making of any amendments the plaintiff may be advised to make, and further steps including the filing of any further affidavits, on a date to be fixed by the Supreme Court. 

Burchett J
Salmon J
Moore J