Veikune v Ha'ateiho [2008] TOSC 13; LA 10-2005 (18 December 2008)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 10 of 2005

Between:

1. SIAKI MASIVA VEIKUNE
a.k.a FONOMANU VEIKUNE
Plaintiff

And:

1. TU’I HA’ATEIHO
Defendant

BEFORE THE HON. CHIEF JUSTICE FORD

LAND ASSESSOR: GEORGE BLAKE

Counsel: Mr Niu for the plaintiff
Mr Tupou defendant and
Mr Kefu as Amicus Curiae

Dates of hearing: 23 May, 11 September, 20 and 21 October 2008
Dates of written submissions: 6 and 19 November and 2 December 2008
Date of judgment: 12 December 2008.

JUDGMENT

Background

[1] The 48-year-old defendant is a Noble of the Realm. He is also a noble's representative in the Legislative Assembly. He assumed the noble's title "Tu'i Ha'ateiho" (King of Ha'ateiho) on the death of his "father", Havea Tu'i Ha'ateiho (in this judgment referred to as "Salesi"), on 5 June 2004.

[2] The word "father" appears in inverted commas for a particular reason. The plaintiff, who is Salesi's younger brother and hence the defendant's uncle, challenges the defendant's paternity. He claims that the defendant is the illegitimate son of Salesi's wife, Afu, and one, Siaosi Faletau (who later held the matapule (talking chief) title of 'Akau'ola and the position of Minister of Police). In this judgment, for ease of reference, I will refer to Faletau as "'Akau'ola".

[3] In the course of the hearing it became apparent that the plaintiff, who resides in Australia and is 72 years of age, was suffering from a loss of memory. He completed his examination in chief with difficulty but his memory problem became quite pronounced during Mr Tu'utafaiva's cross-examination. The plaintiff could not recall bringing the claim. In answer to a question from the Court, he said that he had no knowledge of having instructed his original lawyer, Mrs Helu, back in early 2005 to issue the present proceeding.

[4] The Court then adjourned to allow the plaintiff time to be medically examined and when the hearing resumed, Mr Niu produced a report from the Senior Medical Officer and Authorised Psychiatrist at Vaiola Hospital confirming that his client was suffering from Alzheimer's disease. At that point, upon Mr Niu's application, the plaintiff was granted leave pursuant to Order 9 Rule 7 of the Supreme Court Rules 2007 to prosecute the proceeding by a next friend, Sione Vuna Fa'otusia (referred to in this judgment as "Vuna"). Vuna's father, Fa'otusia, was the younger brother of Veikune, the father of Salesi and the plaintiff, who also held the Tu'i Ha'ateiho title. Vuna, in other words, is the plaintiff's and the late Salesi's first cousin.

The case for the plaintiff

[5] From the outset, Mr Niu acknowledged that it was a very serious matter to challenge the title holder of what he referred to as "one of the most esteemed noble lines in the Kingdom." Counsel claimed, however, that there was "a cloud hanging over the title" but "the family would accept the situation without doubt if the defendant is cleared by a DNA test."

[6] In his amended statement of claim, the plaintiff seeks an order declaring the succession and appointment of the defendant to the title of Tu'i Ha'ateiho to be unlawful and a further order declaring the plaintiff to be the rightful successor. In the alternative, the plaintiff seeks an order from the Court requiring the defendant to undertake a DNA test.

[7] The plaintiff acknowledged that Salesi was lawfully married to Afu on 2 September 1959 and that Afu gave birth to the defendant on 22 August 1960 while she was still lawfully married to Salesi. The plaintiff also acknowledges that the defendant was registered in the official register of births as the legitimate son of Salesi and Afu.

[8] The defendant did not call evidence in the case but Mr Tu'utafaiva made submissions on most of the evidentiary matters relied upon by the plaintiff. I shall try and summarise the evidence relating to each:

(a) The breadfruit tree incident

Mr Tu'utafaiva described this incident as "the genesis of the rumours". It was described by the plaintiff's first witness, 69-year-old Tu'ifua Sevelo Mahafutau ("Tu'ifua") who now lives in California. She told the Court that one day in about 1963 'Akau'ola (now deceased) made a certain statement under a breadfruit tree at Ha'ateiho in the presence of herself (Tu'ifua), her mother and another woman, Funaki. On that occasion 'Akau'ola pointed to the defendant who was then about two or three years old and asked, "who is that little boy?" Funaki said that he is Afu and Salesi's son. 'Akau'ola then allegedly picked up the little boy and said: "that's my son, look at his hair, exactly like my hair." Tu'ifua said: "everybody was so quiet and shocked. Nobody said anything." Tu'ifua said that she later told other members of the family about 'Akau'ola's claim including the defendant's grandparents and the grandmother was so upset that she threw a photograph of the young child (the defendant) on the floor of their house. Tu'ifua disclosed that at some stage (the relevant dates were not identified) she was ‘Akau’ola's girlfriend.

(b) The barbecue incident

Vuna, the plaintiff's next friend in this action, is 54 years of age. He holds a law degree from an Australian university and is currently the Secretary for Justice with the Ministry of Justice in Tonga. The defendant's father, Salesi, was Vuna's first cousin, as is the plaintiff. Vuna told the Court that he went to boarding school in Hawaii between 1974 and 1978 and on some weekends he stayed with Salesi and Afu who were then living in Hawaii. In 1979 he travelled to London and on his return to Hawaii in December of that year he met up with Salesi and he told him that he was aware of the allegation that the defendant was not his son but 'Akau'ola's son and he suggested to Salesi that in order to resolve the quarrels among the family he should try and settle the allegation while he was still alive. The following week Vuna was invited by Afu to go to their place for a barbecue and on that occasion he discussed the allegation with both Afu and Salesi. He told Salesi that the allegation had to stop and Salesi responded, "Vuna,Veasi'i (the defendant) is my son." Vuna told the Court that after further discussion "and three more beers" Salesi agreed with him to have a blood test to sort the matter out. Nothing was done about it, however. Vuna's evidence then jumped to 1996 when the defendant's eldest daughter had her first birthday celebration. The witness said that on that occasion Afu asked him not to pursue the matter of the blood test any more. Vuna asked her why not but Afu gave no reason and when he spoke to Salesi about it later, Salesi did not appear keen to have a blood test carried out.

(c) The rumour from 'Oto'ota

This evidence was given by 69-year-old Paula Vi Tualau who was 'Oto'ota's cousin. 'Oto'ota was also Salesi's third cousin. Paula told the Court that in about the year 2000 he had approached 'Oto'ota because he was working on the family genealogy and 'Oto'ota, who would then probably have been in her 60s, told him that, in reference to the defendant, Salesi had once said to her: "he is not my son but bear in mind I have raised the boy since he was in the womb and today he has grown and I have looked after him since and I love him." The Court was told that 'Oto'ota had passed away in 2007 or 2006. There is no evidence as to where or when the alleged conversation between Salesi and 'Oto'ota took place. Paula said that he later told Vuna about the conversation. Mr Tu'utafaiva noted that what Salesi allegedly told 'Oto'ota contradicted what Salesi had earlier told Vuna in Hawaii.

(d) The proposed remarriage

The evidence was that Salesi's wife Afu passed away in 2003. The final witness for the plaintiff was Savelina Fa'oa. She told the Court that in 2004 when she was 18 years of age and Salesi would have been in his early 70s, he came to her when she was living at Sopu and said that he wanted to marry her, "because he wanted a rightful heir who the title would rightfully go to." The witness said she asked him what about his son (the defendant) and Salesi replied, "he wasn't his son but unfortunately he had registered him." The witness told the Court that she then said to Salesi that they would get married. According to Savelina, the wedding was to take place at the same time as the opening of the new Free Wesleyan Church at Ha'ateiho but it did not take place because Salesi passed away a week before the church opening. Savelina's father had been the church minister at Salesi's estate of Ha'ateiho between 1997 and 1999. Salesi had known Savelina since those days when she was a schoolgirl. Savelina and her older sisters used to help out with house work at the noble's home at Hateiho. Savelina told the court that she did not go to Salesi's funeral because, "I was afraid of going". She said that prior to this case the only person she had told her story to was Vuna. Commenting on Savelina's evidence, Mr Kefu submitted: "None of her sisters or parents were called to confirm her evidence, and her account of the preparation for the wedding was not credible because it seemed like a small wedding ceremony for a noble, and only she was preparing for it."

Submissions

[9] Mr Tu'utafaiva, quite correctly, submitted that it "is a very very serious allegation" by the plaintiff to allege that the defendant is illegitimate and, of course, that submission must have particular relevance and significance given the defendant's status as a Noble of the Realm and a Member of Parliament. Counsel continued: "therefore the plaintiff should be required to prove his claim with sufficiently strong evidence to match the very very serious nature of his allegation." Counsel further submitted that, given the seriousness of the allegation, it would not be sufficient for the plaintiff to prove his case simply to the standard of proof required in civil cases, namely, the balance of probabilities. Counsel submitted that the plaintiff's claim could not succeed because it was all based on hearsay evidence and at its highest it was "very unreliable". He also submitted that the Court had no power to require the defendant to undertake a DNA test.

[10] Mr Niu acknowledged at the outset that he was up against the common law presumption of legitimacy which in Tonga is embodied in section 44 of the Evidence Act (Cap 15). Section 44 provides:

"Where a person is proved to have been born during the continuance of a valid marriage between his mother and any man, or is proved to have been born after the dissolution of such marriage by death or a decree of divorce, the mother remaining unmarried and the birth of the person occurs within the natural period of gestation reckoning the same from the date of the dissolution of the marriage, the Court shall presume conclusively that he is the legitimate son of that man, unless it is shown by evidence, other than that of the parties to the marriage, that such parties had no access to each other at any time when he could have been begotten."

[11] Mr Niu stressed that section 44 was enacted at a time (1926) "when science and technology had not developed even into recognising blood types and groups, let alone DNA tests." Counsel submitted that blood tests should be permitted to rebut the presumption because:

"Section 44 can be held to have left a gap in Tonga's legislation. It does not provide for proof of paternity by blood tests or DNA tests which may conflict with the only requirement of that section that the parties have no access to each other at the time of conception. Because of that gap the Civil Law Act (Cap 25) applies the common law of England."

[12] In reference to the common law position, Mr Niu sought to rely on the judgment of Ormrod J. in the English case of H v H [1966] 1 All ER 356. He submitted:

"In the present case, this Court is faced with a situation in which a blood or DNA test would assist it to arrive at a just determination of this dispute over the title of Tu'i Ha'ateiho and the estate of Ha'ateiho and other estates of that title, for which test there is no legislation in Tonga. This Court is therefore allowed by the Civil Law Act to apply the common law of England, and the common law of England is that the Court can order a blood test, or in this case, a DNA test, to be carried out, as shown in the judgment of Ormrod J. referred to above."

[13] For his part Mr Kefu, in his typically succinct submissions, summarised his contentions as amicus curiae in these terms:

"There is no legal basis for the plaintiff to apply to the Court to order the defendant to do a blood test. There is no statutory power for the Land Court to order a person to be subjected to a blood test without his consent. This is an intrusive order and therefore requires statutory authority to do so. Moreover, it would be akin to the defendant taking over the onus of proof to prove the plaintiff's case. The plaintiff's claim therefore depends solely on him proving in very clear terms that the defendant is not the son of (Salesi). The plaintiff's claim seems to be based on a rumour started by Tu'ifua Mahafutau which seems to have developed into the truth, and also very clearly hearsay evidence."

Discussion

[14] It appears from the pleadings and counsel's submissions that the plaintiff's claim is advanced under two limbs. First, it is alleged that the evidence called by the plaintiff in the case is sufficiently cogent and persuasive to rebut the presumption in section 44 of the Evidence Act and, hence, the Court should proceed to declare the defendant's succession to the title of Tu'i Ha'ateiho unlawful. In the alternative, it is submitted that the Court has inherent jurisdiction at common law to order the defendant to undergo a DNA test and, "in the interest of justice and due compliance with clause 111 (of the Act of Constitution of Tonga) such a test should be ordered and applied in the present case."

[15] The relevant passage relied upon by Mr Niu in clause 111 of the Constitution, which is a lengthy provision providing for the law of succession, states:

"Children lawfully born in wedlock only may inherit and the eldest male child shall succeed and the heirs of his body but if he have (sic) no descendants then the second male child and the heirs of his body and so on until all the male line is ended."

[16] The presumption of legitimacy embodied in section 44 of the Evidence Act is not lightly displaced. Barnard J. held in the English case of W v W [1953] 2 All ER 1013, 1015 that the standard of proof required to rebut such a presumption of law was proof beyond all reasonable doubt rather than merely proof on a balance of probabilities. In reference to the burden of proof in a paternity case, Barnard J. adopted the principles laid down by Sir Francis Jeune P. in Gordon v Gordon [1903] UKLawRpPro 9; [1903] P. 141 in these terms:

"The law says that what has to be proved is that the husband did not have intercourse which might have led to the birth of the child. It does not allow the fact that another person had intercourse with a wife to be a material consideration. In the well-known textbook on bastardy, by Sir Harris Nicholas [A TREATISE ON THE LAW OF ADULTERINE BASTARDY (1836), p.186] the learned author, after commenting on certain cases, says this, and it appears to me to represent accurately the law on the subject: "Sexual intercourse between man and wife must be presumed, and nothing, except evidence that the husband did not have such intercourse at the period of conception, can illegitimise a child born in wedlock. If the husband could, from circumstances of time, place, and health, have had nuptial intercourse with his wife, and there be no evidence to prove that he did not have such intercourse, he must be considered the father of her child, even if she had committed adultery with one, two, or twenty other men".

[17] In England the onus of proof is now different from that stated by Barnard J. in W v W. These days the civil standard of proof, namely on the balance of probabilities, is sufficient to displace the presumption of legitimacy. In other words the presumption may be discharged simply by showing that it is more probable than not that the person is legitimate or illegitimate, as the case may be. That change was brought about by section 26 of the Family Law Reform Act 1969 which provides:

"Any presumption of law as to the legitimacy or illegitimacy of any person may in any civil proceedings be rebutted by evidence which shows that it is more probable than not that that person is illegitimate or legitimate, as the case may be, and it shall not be necessary to prove that fact beyond reasonable doubt in order to rebut the presumption."

[18] However, no similar legislative change has been introduced in Tonga in relation to the presumption of legitimacy in section 44 of the Evidence Act and, accordingly, any party seeking to rebut that presumption must do so on evidence which establishes his or her claim beyond all reasonable doubt.

[19] The evidence produced by the plaintiff in the present case falls well short of satisfying the standard of proof required to rebut the presumption in section 44 of the Evidence Act. Even allowing for the fact that historically the Land Court has adopted a rather generous approach to the interpretation of the exceptions to the hearsay rule, the evidence in the present case is based on the very worst type of hearsay evidence -- conjecture, scuttlebutt and, in some cases, double hearsay. For the record, I specifically reject the evidence of Savelina Fa'aoa. In many respect I simply did not find her to be a credible witness.

[20] I, therefore, find against the plaintiff under the first limb of his claim. I would add this. If, as Mr Niu claims, section 44 of the Evidence Act has, "left a gap in Tonga's legislation" then that "gap" is to be filled not by the court but by Parliament through proper legislative amendment.

[21] The second limb of the plaintiff's claim is that this Court has a discretionary power at common law to order the defendant to undergo a DNA test. In support of this proposition, Mr Niu relied upon the judgment of Ormrod J. in H v H [1966] 1 All ER 356. H v H involved a petition for divorce by the wife and a cross petition by the husband for divorce on the grounds of adultery. An issue arose over the paternity of the youngest child. A blood test had been taken from the child with the permission of his mother. The blood test showed that the husband could not have been the child's father. Contemplating what the position might have been had the child's blood test results not been made available, Ormrod J. said (p.357), in the principal passage relied upon by Mr Niu:

"When, as I think in these days, it is possible to enable the courts to do justice on a footing of fact and not to do injustice on the basis of presumption, I should myself greatly hope that no difficulties will ever be put in the way of a child's blood being supplied for blood grouping."

[22] The legal position in relation to the blood testing of a young child and the blood testing of an adult is quite different. The respective approaches were analysed in depth by the House of Lords in S v S [1970] 3 All ER 107. At page 111 Lord Reid said:

"I must now examine the present legal position with regard to blood tests. There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. In my view, the reason is not that he ought not to be required to furnish evidence which may tell against him. By discovery of documents and in other ways the law often does this. The real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty . . .

But the position is very different with regard to young children. It is a legal wrong to use constraint on an adult beyond what is authorised by statute or ancient common law powers connected with crime and the like. But it is not and could not be a legal wrong for a parent or person authorised by him to use constraint to his young child provided it is not cruel or excessive."

[23] To similar effect, Lord Hodson said (p.123):

"No one doubts that so far as adults are concerned the law does not permit such an operation (blood tests) to be performed against the wishes of the patient. I quote from an American decision in Bedmark v Bedmark (reference cited). The Court said: "to subject a person against his will to a blood test is an assault and battery, and clearly an invasion of his personal privacy . . .

The decision of a child is different. Here the court is occupying the position of the parent and must act as the judicial reasonable parent. The parent is not guilty of assault if he physically interferes with his child by way of reasonable restraint or chastisement or for therapeutic reasons. There is, therefore, not the same objection to taking a blood test from a child."

[24] Contrary to the submission advanced by counsel for the plaintiff, I do not accept, for the reasons expressed, that in the absence of statutory authority this Court does have the power to order an adult person to undergo a blood test or a DNA test.

[25] In the United Kingdom issues regarding succession to hereditary peerages are dealt with by a special Committee for Privileges of the House of Lords.

In Re Moynihan [2000] 1 FLR 113 the Committee accepted that evidence as to blood and DNA testing is admissible in peerage claims but in that case the blood tests had been taken voluntarily. The decision has no bearing, therefore, on the basic principles set out above.

Conclusion

[26] The plaintiff fails in his claim and the defendant is entitled to costs at a figure to be agreed or taxed. No award of costs is made in favour of the amicus curiae but I record the Court's grateful appreciation to him for his significant contribution.

NUKU'ALOFA: 18 December 2008.

CHIEF JUSTICE