Heimuli v Hurrell [2011] TOCA 7; AC 2 of 2011 (30 September 2011)

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

APPEAL NO. AC 2 of 2011
[CV 724 of 2007]

BETWEEN:

SIONE NGANA-KI-HA'ANGANA HEIMULI
Appellant

AND:

1. MELE TILEMA HURRELL
2. GWYNVOR REECE HURRELL
3. REGISTRAR GENERAL
Respondents

Coram : Burchett J
Salmon J
Moore J

Counsel : Mr Niu for the Appellant
Mr Kaufusi for First and Second Respondents
Mr Sisifa for Third Respondent

Dates of Hearing : 26, 27 September 2011
Date of judgment: 30 September 2011

JUDGMENT OF THE COURT

[1] This is an appeal from a decision of Shuster J. dismissing a claim which effectively sought rectification of the Register of Births. The alleged defect in the register was its recording of the name of the father of one Viliami Hurrell as having been Manitisa Heimuli. The question decided is of importance because of inheritance rights in respect of an allotment of land.

[2] Before explaining the circumstances further, we should refer to a complication that was drawn to our attention only at a late stage of the hearing. The Appellant lives in the United States and is seriously incapacitated and indigent. An order was made for the provision of security for costs in the appeal in the sum of $8,000, which has not been paid, nor could it be. Normally, this would mean, subject to discretionary considerations, that the appeal would be stayed or dismissed. However, the Respondents not having raised the matter before the appeal was embarked upon, nor indeed till very late in its hearing, the Court considered it would be wrong to allow the Respondents to stifle the matter, after permitting the Appellant to pursue it so far, by a tardy application at the very end of the argument. Accordingly, a stay was refused.

[3] We return to the facts from which the dispute arises. Mr Viliami Hurrell ("Viliami"), who died on 6 December 2003, was born to one Susana Hurrell ("Susana") on 2 April 1943. There is no doubt that he was born illegitimate, but the learned judge has held he was legitimated by the subsequent marriage of his mother Susana to Manitisa Heimuli ("Manitisa"): Legitimacy Act Cap.32, ss 3(1) and (4); Maliepo v Faka'osilea and Minister of Lands [1995] Tongan LR 53; Heimuli v Kingdom of Tonga (Burchett, Salmon and Moore JJ, 20 July 2007). That subsequent marriage occurred on 6 April 1947. Contesting the judge's conclusion, the Appellant says Viliami's biological father was another man, to whom Susana was never married.

[4] The judge accepted "the fact that Manitisa Hurrell [sic - he must have meant "Heimuli"] did not sign or date the Register of birth on first registration ... on the 8th April 1943". He also records that he "accepts and finds as a fact; that: - upon the first registration ... the name of [Viliami's] father was NOT entered in the Supreme Court's Register". His Honour went on expressly to find "as a fact that the Registry entry against the entry for [Viliami's] father – was in fact left blank".

[5] On 31 May 1957 Manitisa and Susana both attended the office of the Registrar of Births and signed their names in the Supreme Court's Register as the father and mother of Viliami. Yet again, in 1972, Viliami procured a further amendment of the Register to assert his position as the biological son of Manitisa. Viliami was then 29 years of age.

[6] Manitisa died on 21 July 1980. Susana died on 17 October 1999. On 6 December 2003, as we have already noted, Viliami also died.

[7] It will be apparent that the lapse of time, and the intervention of deaths, have left the Court with a difficult task of fact finding upon somewhat exiguous evidence. A number of witnesses gave evidence, but there was one, upon whom it is clear Shuster J placed considerable reliance, Eveline Hurrell born to Susana in 1937 and unquestionably a child of a father whom Susana never married. Apart from her youth at the most relevant times, she had, as a member of the household, unrivalled opportunities to observe the relationships maintained between Susana, Manitisa and Viliami. His Honour had the opportunity, which is denied this Court, to assess her demeanour as a witness, and to form an impression, not only of her honesty, but also of the extent to which her memory and recall of events far back in her childhood might nevertheless be credible. He concluded her evidence was trustworthy.

[8] It is clear law that an appellate court must accept, in a case that depends on the credit of oral evidence, the great advantage enjoyed by the trial judge who saw and heard the witnesses. There are cases where, even so, a decision accepting particular evidence may be seen as plainly wrong. However, in the present case, there is no overwhelming reason to reject the evidence of Eveline, which is borne out to some significant extent by Manitisa's deliberate acknowledgement of his fatherhood in 1957. The judge was entitled, in the circumstances, to give great weight to his view of the witness Eveline.

[9] Accordingly the appeal should be dismissed with costs, save that the Registrar General's costs should be as on a submitting appearance.

Burchett J
Salmon J
Moore J