Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

Ha'angana v Kingdom of Tonga [2006] TOLawRp 31; [2006] Tonga LR 321 (8 September 2006)

IN THE SUPREME COURT OF TONGA

Ha'angana

v

Kingdom of Tonga

Supreme Court, Nuku'alofa
Ford J
CV 614/2005

19 April 2006; 8 September 2006

Civil procedure – judicial review application – cross-examination – not appropriate in this case

Competing heirs' claims had been lodged to two allotments formerly owned by Manitisa Heimuli, deceased. The applicant alleged that Manitisa Heimuli had died without any legitimate issue and he claimed to be the rightful heir to the allotments because his late father was Manitisa's older brother. Unbeknown to the applicant at the time, Viliami Hurrell Heimuli had also filed an heir's affidavit to the two allotments claiming that he had been born in 1943 as the illegitimate son of Manitisa and Susanna Hurrell but that his birth was later legitimated in 1947 when Manitisa and Susanna were married. On 15 August 1972 Viliami's "illegitimate" birth had been re-registered by an asterisked addition, numbered 167A, to the original entry of birth in the register book showing the child's name as Viliami Hurrell Heimuli, the father as Manitisa Heimuli, the mother as Susanna Heimuli and the child's status as "legitimate". Viliami had passed away in 2003. The applicant filed an application for judicial review seeking appropriate orders requiring the Registrar General of Births, Deaths and Marriages to remove from the official register the entry recording the legitimation of Viliami on the grounds that he never was the son of Manitisa. Counsel relied on supporting affidavits and the fact that the affidavit evidence had gone uncontested. The respondent, representing the Registrar General of Births, Deaths and Marriages, contended that the applicant had failed to establish any illegality in the re-registration of Viliami's birth as "legitimated".

Held:

1. In judicial review proceedings leave was rarely given to cross examine deponents to affidavits but cross-examination should be allowed whenever the justice of the case so required. This was not an appropriate case for allowing cross-examination.

2. Where a person was legitimated by the marriage of his parents subsequent to his birth then section 3(1) of the Legitimacy Act gave immediate recognition to the legitimation from the date of the marriage. Recognition of the person's legitimacy may be achieved through a subsequent court order or reregistration of the details of the person's birth (as was the case with Viliami) but such recognition was no more than a formal recognition of the legitimation brought about by section 3(1) of the Act.

3. The applicant had failed to rebut the presumption of regularity which meant that the re-registration of Viliami Hurrell's birth as "legitimated" was to be regarded as valid until proved to the contrary. The application for judicial review was dismissed.

Cases considered:

Maamakalafi v Finau [2004] Tonga LR 218 (CA)

Maliepo v Faka'osilea & Minister of Lands [1995] Tonga LR 53

Statute considered:

Legitimacy Act (Cap 32)

Counsel for applicant: Mrs Vaihu
Counsel for respondent: Miss Simiki

Judgment

The application

[1] The 53-year-old applicant is a Tongan national formerly of Kolomotu'a, Tongatapu but now resident in Palo Alto, California. He is in a poor state of health suffering from diabetes and he was unable to travel to Tonga for the hearing. A medical report produced to the court states that he is dependent upon dialysis treatment.

[2] The case relates to conflicting heirs' claims to two blocks of land in Kolomotu'a -- a town allotment called "'Ufilei" and a tax allotment called "Lele". The allotments were formerly owned by the late Manitisa Heimuli who died, according to the applicant, without any legitimate issue. In March 2002 the applicant filed an heir's affidavit claiming to be the rightful heir to the allotments because his late father was Manitisa's older brother. Unbeknown to the applicant at the time, a Viliami Hurrell Heimuli, who for ease of reference I shall refer to simply as "Viliami" or "Viliami Hurrell", also filed an heir's affidavit to the two allotments claiming that he was born in 1943 as the illegitimate son of Manitisa and Susana Hurrell but that his birth was later legitimated in 1947 when Manitisa and Susana were married. Viliami passed away in 2003.

[3] The proceeding before the court is in the form of an application for judicial review filed by the applicant seeking appropriate orders requiring the Registrar General of Births, Deaths and Marriages to remove from the official register entry No.167A/43 which is the re-registration entry recording the legitimation of Viliami Hurrell. It is alleged by the applicant that the re-registration was procured by fraud on the part of the said Viliami Hurrell in that he never was the son of Manitisa.

The plaintiff's case

[4] The applicant accepts that Viliami Hurrell was born on 2 April 1943 and that on 6 August 1947 his mother Susana married Manitisa. It is the applicant's contention, however, that Viliami's father was not Manitisa but another man from Ha'apai. The main challenge to Viliami's status comes in the form of four affidavits filed in support of the application by relatives who recall the circumstances surrounding the marriage of Manitisa and Susana. Perhaps the most powerful is the affidavit of Manitisa's nephew, 85-year-old Samisoni Pelesikoti, who was born in Kolomotu'a on 16 November 1920. He deposed:

"3. That, one Manitisa Heimuli (now deceased) the son of Semesi Heimuli and 'Akosita Heimuli is the youngest brother of my mother the late Lavinia Moala Heimuli who was the eldest out of six children of their said parents. The said Manitisa Heimuli was about eight years old when I was born and when I grew up I got to know him very well.

4. That, I recall in the 1940s whilst I was serving in the Defence Force and was almost 27 years old a wedding in the family took place which was my uncle the said Manitisa Heimuli and Susana Hurrell. I recall it vividly because there (was) uproar in our family due to Manitisa marrying a lady who already had two children by other men. These two children were a girl namely 'Evelingi Hurrell who later married Hon 'Akau'ola and a boy namely Viliami Kohate Hurrell who later married a lady from Ha'apai I do not know the name.

5. That, before my uncle Manitisa Heimuli's marriage to Susana, he had two illegitimate children namely Kisuafi Lepa (male) which my mother adopted through Tongan customary adoption and Leipua Lepa (female) which my mother's sister 'Alisi Fusimalohi adopted through the customary adoption as well. My mother and her younger sister 'Alisi there were two girls in the family and all the rest of the family got mad with Manitisa's wedding to Susana because they had wanted him to marry the mother of (his) two illegitimate children Ms Kalo Lepa instead of marrying Susana who had two children by other men.

6. That, it was common knowledge and in fact our family never acknowledged the presence in the family of Susana Hurrell Heimuli's two children Viliami Kohate Hurrell and 'Evelingi Hurrell and they were never children of the said Manitisa Heimuli. They never bear the family surname of Heimuli and I'm surprised to learn about Viliami Kohate Hurrell being a legitimated son of Manitisa Heimuli. I knew in Kolomotu'a where all of us live Viliami Kohate and his family and children use the surname Hurrell all the time."

Mr Pelesikoti's affidavit is dated 3 January 2006.

[5] The three other affidavits were to similar effect. Another of Manitisa's nephews, Sione Fusimalohi, aged 79 deposed:

"4. That, in about 1947 when I was 21 years old Manitisa Heimuli married a lady called Susana Hurrell who had two children with other men prior to the marriage and they were about 4 (the boy) and 6 (the girl) years old. I heard both these children had fathers from Ha'apai. The boy was known as Kohate and his father was Finau Katoa and the girl was 'Evelingi and her father was Tohikoula Helu. This was common knowledge in the family and they were not children of Manitisa Heimuli.

5. That, I recall very well uproar and dissatisfaction in the family because all wanted Manitisa to marry the mother of his two illegitimate children rather than looking after two children his wife brought into the family. They were never close to us and always bear the surname Hurrell and not Heimuli. I am therefore very surprised when I heard Kohate also known as Viliami was legitimised to be the son of my uncle Manitisa Heimuli.

6. That, it was common knowledge also in the whole of Kolomotu'a and every one that knows my mother's family Heimuli as it is a very big family that Viliami Kohate Hurrell and 'Evelingi Hurrell the two children of Susana Hurrell wife of Manitisa Heimuli were never children of Manitisa Heimuli either illegitimate or legitimate. It is a pity the people of Kolomotu'a in the age-group of Manitisa Heimuli are either dead or not in Tonga to enable affidavits to be taken from them but I can vouch for the truthfulness of what I am proposing to in this affidavit."

[6] Another piece of evidence the applicant relies upon consists of certain items of correspondence which his counsel obtained recently from the Prime Minister's Office. The first item is a copy of a letter dated 12 December 1969 from J. C. Riechelmann, Secretary to Government, to "HBM's Commissioner and Consul" confirming that Manitisa Heimuli, a government civil servant, was wishing to spend six months pre-retirement leave in New Zealand. The letter stated:

"He would be accompanied by his wife Susana and son-in-law Viliami Hurrell (aged 26 years), to whom Government sponsorship is extended."

In a second letter dated 18 December 1969 to the same recipient, Mr Riechelmann asked that the words "son-in-law " be changed to "stepson".

[7] The correspondence just referred to was not available at the hearing and Crown counsel has, therefore, not had the opportunity of making submissions in relation to it. The letters were annexed to Mrs Vaihu's written submissions and counsel simply drew the court's attention to the fact that even in 1969 Manitisa was referring to Viliami Hurrell as his stepson, not his son. On the strength of that evidence and the four supporting affidavits the applicant invites the court to conclude that Manitisa never was Viliami's father and the Register of Births should be corrected accordingly.

The Crown case

[8] The respondent was named as the Kingdom of Tonga representing the Registrar General of Births, Deaths and Marriages. The descendants of Viliami Hurrell took no part in the proceeding.

[9] Miss Simiki took the court chronologically through all the official records relating to the registration of the legitimation of Viliami Hurrell beginning with the original entry recording his birth on 2 April 1943. The large handwritten register book was produced at the hearing. It is now in a rather delicate and fragile state but the relevant entry ( No.160) is clearly recorded. It shows the child's name as Viliami Hurrell, the father's name as Manitisa Heimuli and the mother as Susana Hurrell. The child's status is shown as illegitimate. The birth was registered on 8 April 1943 by one " Tinalasa Hurrell". The next relevant historical record was the registration on 6 August 1947 of the marriage between Manitisa Heimuli and Susana Hurrell.

[10] On 8 August 1972 Viliami Hurrell made an application in writing to the Registrar of the Supreme Court to have his birth legitimated. His letter (as translated) reads:

"Registrar of the Supreme Court

Nuku'alofa

Tonga

Dear Sir,

Application is respectfully made to your Honour for leave to legitimise my birth as a legitimate child according to the Legitimacy Act (Cap.62 (sic) of the Laws of Tonga).

Attached herewith is the copy of my birth certificate and my parent's marriage certificate. Neither of my parents were married at the time of my birth.

I hope that you will kindly grant me the opportunity that the law provides.

Yours sincerely

Sgd: Viliami Hurrell"

[11] There is a handwritten note dated 18/8/72 at the foot of the letter which was presumably written by the Registrar or Assistant Registrar to one of the clerks which reads:

"Clerk

This is in order. Have him re-registered as legitimated child by subsequent marriage of parents on 6/8/47. Fee paid."

[12] On 15 August 1972 an asterisk was placed beside the original registration ( No.160) of Viliami Hurrell's birth on 8 April 1943 and the corresponding asterisk at the foot of the same page effectively re-registered Viliami's birth as No.167A showing the child's name as Viliami Hurrell Heimuli, the father as Manitisa Heimuli, the mother as Susana Heimuli and the child's status as "legitimate".

Submissions

[13] Miss Simiki submitted that in making his application in letter form supported with his original birth certificate and the marriage certificate of his parents, Viliami had, according to the evidence of the present Chief Registrar, complied in all respects with the working procedure back in 1972. She submitted that the Registrar, in turn, had acted correctly administratively when, in reliance on the application and supporting documents, he gave directions and authority for Viliami Hurrell's status to be legitimised. Crown counsel further submitted that, accordingly, the applicant had failed to establish on the balance of probability that the certificate No. 167A/1943 was issued on wrong principle or under mistake or error of law or as a result of fraud.

[14] Mrs Vaihu submitted that the Registrar should not have accepted the letter of application from Viliami Hurrell and his actions in acting upon the letter and the marriage certificate "was unreliable". Counsel argued that the "justice of the case demands that the parents should have been required to depose that the child legitimated was theirs and should be approved as such." Mrs Vaihu also noted that the four affidavits that had been filed in support of the application had not been contested.

Conclusions

[15] I deal first with Mrs Vaihu's submission that the affidavit evidence was uncontested. As is stated in Halsbury 4th ed. Vol 1(1) para 176:

"In judicial review proceedings leave will rarely be given to cross-examine deponents to affidavits . . . Nevertheless cross- examination of deponents should be allowed wherever the justice of the particular case so requires."

I do not consider that this was an appropriate case for allowing cross examination of the deponents to the four affidavits filed on behalf of the applicant. None of the deponents were, of course, able to give direct evidence as to who Viliami's father was. Their affidavit evidence was, therefore, necessarily based on hearsay. Furthermore, two of the deponents were only young children when Viliami was born in 1943. I see no merit, therefore, in Mrs Vaihu's submission that the affidavit evidence was uncontested.

[16] Mrs Vaihu was not able to refer to any legal authority in support of her contention that the Registrar should not have acted on Viliami's written application. As Miss Simiki observed, the evidence of the present Chief Registrar of this court established that Viliami followed the correct working procedure back in 1972 for having a birth re-registered as a result of the subsequent marriage of an illegitimate child's parents. In any event, the presumption of regularity applied by the Court of Appeal in Maamakalafi v Finau [2004] Tonga LR 218 (CA), would confirm the legality of the re-registration of Viliami Hurrell's birth unless the contrary was proved.

[17] Mrs Vaihu was unable to cite any legal authority in support of her other submission that the parents should have been required to depose that the child legitimated was theirs. The fact of the matter is that there simply was no requirement for the parents to provide such information and that continues to be the legal situation. Counsel seems to overlook the fact that, as a matter of law, the status of an illegitimate child changes automatically to that of a legitimated child upon the subsequent marriage of his parents. It was not strictly necessary, in other words, for Viliami to go through the steps he did in 1972 to have his birth re-registered. Under section 3 of the Legitimacy Act (Cap 32) he had been a legitimated child ever since his parents had married back in 1947.

[18] The legal position in this regard was explored by the Court of Appeal in some detail in Maliepo v Faka'osilea & Minister of Lands [1995] Tonga LR 53. In that case the court held that where a person is legitimated by the marriage of his parents subsequent to his birth then section 3(1) of the Legitimacy Act gives immediate recognition to the legitimation from the date of the marriage. The court recognised that recognition of the person's legitimacy may be achieved through a subsequent court order or re-registration of the details of the persons birth (as was the case with Viliami Hurrell) but the court concluded, that such recognition, " is no more than a formal recognition of the legitimation brought about by section 3 (1) of the Act."

[19] The final point of significance appearing in the 1943 Registrar Book is that alongside the original entry recording the birth of Viliami Hurrell (entry No.160) at the far right-hand side of the page immediately above the signature of "Tinalasa Hurrell", the person who registered Viliami's birth on 8 April 1943, are two handwritten signatures that were inserted into the Register Book subsequently. The signatures are those of Susana Heimuli and Manitisa Heimuli and they are dated 31 May 1957. Mrs Vaihu drew the court's attention to the fact that some of the correspondence she had obtained from the Prime Minister's Office contained the signature of Manitisa Heimuli when he was still a government employee. She does not say so in so many words but presumably the conclusion she is inviting the court to draw is that Manitisa's signature in that correspondence is different from the signature appearing in the Register Book. If that is counsel's contention then I do not accept it. I am satisfied that the signatures are the same and they are all the genuine signatures of Manitisa Heimuli.

[20] There was no evidence as to why Manitisa and his wife went along to the Registry Office on that particular day in 1957 and signed their respective signatures alongside the original entry of Viliami's birth but it is clear evidence, if any further evidence is required, from Manitisa acknowledging that he, in fact, was Viliami's father. There is no evidence that any of the deponents who filed affidavits in this case had knowledge that the name "Manitisa Heimuli" appeared as Viliami's father on his original birth certificate entry back in 1943. Nor would they have known that later, in 1957, Manitisa actually attended the Registry Office and signed his name alongside that original entry thus acknowledging that he was Viliami's father. Not even counsel for the applicant was aware of these matters until the hearing and she, quite properly, made an acknowledgement to that effect in her written submissions. If the individuals who filed affidavits in support of the applicant's case had been aware of these facts at the time they swore their affidavits then they may have been more reticent about some of the more categorical statements they deposed to.

[21] Why Manitisa throughout his life apparently kept referring to Viliami as his stepson and why he apparently deliberately concealed from the rest of his family the fact that he was Viliami's father (accepting the affidavit evidence in this regard) is something that now will probably never be known. I am satisfied, however, for the reasons mentioned above, that Viliami Hurrell was indeed the legitimated son of Manitisa Heimuli and his wife Susannah.

[22] The application for judicial review is dismissed. The respondent is entitled to costs to be agreed or taxed. As Viliami Hurrell's next of kin have not been a party to this litigation, I direct the Chief Registrar to forward a copy of this judgment to the office of the Minister of Lands.