King in Privy Council upholds Tongaliuaki as lawful successor to Fielakepa title [1]
Friday, August 19, 2016 - 19:28. Updated on Thursday, January 5, 2017 - 13:57.
HM King Tupou VI in Privy Council has upheld a Land Court’s judgment made last year declaring Tupou Tongaliuaki Filo’aulo Aleamotu’a (25) as the lawful successor of the hereditary title Fielakepa, after dismissing an appeal made by his uncle Rt Hon Lord Fielakepa to the Privy Council of Tonga on January 15 this year.
Tongaliuaki is the eldest legitimate son of the appellant's older brother Taulupe, who passed away.
In a nine-page judgment, the King in Privy Council stated that by writ issued in the Land Court on June 19, 2015 the respondent in this appeal (Tupou Tongaliuaki) had challenged the appointment by King Tupou VI of the appellant (Rt Hon Lord Fielakepa) to the hereditary noble title Fielakepa and the hereditary estates, which went with the title.
The land court action was defended by the appellant but on December 4, 2015 Mr Justice Scott found in favour of Tupou Tongaliuaki and issued a number of declaratory orders.
After hearing arguments on this appeal, HM in Privy Council stated that they see no reason to interfere with the judgment by Justice Scott that the respondent is the eldest legitimate son of the late Taulupe and in the words of Section 38(1) of the Land Act is the, lawful successor to the late Baron Fielakepa.
“Therefore this appeal should be dismissed with costs to respondent.”
HM in Privy Council also endorsed expressly Justice Scott’s declarations 1-4 of his judgment.
"That is the end of the matter as the respondent has now abandoned his financial claims against the appellant, excepting only on the costs of this appeal."
The judgment stated that the appellant raised three principal grounds of appeal.
- The respondent had no cause of action against the appellant as his complaint was with respect to the exercise of powers of His Majesty, which powers are not subject to challenge by the Courts.
- That His Majesty is granted the exclusive power to appoint titles of honour and distinction under Clause 44 of the Constitution and that his power is not subject to challenge or review
- That the presumption of legitimacy in Section 44 of the Evidence Act is inconsistent with the Constitution and therefore void.
Failed
HM in Privy Council found all these grounds had failed.
In the first ground of appeal they found there are a number of provisions in the Constitution, which invest the King with a personal discretionary power such as Clause 44, which provides that: “It is the King’s prerogative to give titles of honour and to confer honourable distinctions but it shall not be lawful for him to deprive anyone who has an hereditary title of his tile such as chiefs of hereditary lands and nobles of the Legislative Assembly who possess hereditary lands except in cases of treason.”
The King cannot under Clause 44 dispossess an existing titleholder of his title or estates except in cases of treason.
It further stated, notwithstanding Clause 44 of the Constitution which grants to the King alone the power or prerogative to give titles of honour and to confer honouarble distinctions; Section 38(1) of the Land Act states it is the King who is to publish the name of the lawful successor to a noble title in the Gazette.
Section 40(1) of the same Act, which vests in the King the exclusive power to appoint Trustees to a noble’s estate where the lawful successor has not yet reached the age of maturity (which in Tonga is 21-years, Clause 27 of the Constitution).
“We do not consider, on a proper construction of Clause 111 of the Constitution, that Clause 44 entitles the King to depart from the prescribed table of succession set out in Clause 111. That Clause itself does not give him any such power nor do we consider that Clause 44 can be read as empowering the King to ignore the express wording of Clause 111."
Eldest legitimate son
The judgement stated on the second ground of appeal, the judge has summarised that the law of succession to hereditary estates and titles is set out in Clauses 111 and 112 of the Constitution supplemented by section 30 and Division II of Part III of the Land Act (cap 132).
The effect of this law is not disputed. It is known as the law of primogeniture, in that the oldest legitimate son has the right to inherit the whole estate. He has this right in preference to any elder but illegitimate sons, to younger sons or other collateral relatives.
"In addition, an oldest legitimate son of a deceased elder brother inherits before a living younger brother by right of substitution. A female is only eligible to inherit if there is no male heir. Importantly also, upon the death of a hereditary noble the rules of succession apply immediately as a matter law."
Section 38 of the Land Act provides that the date of succession is the day following the death of the holder. It is only if the holder dies with no legitimate heirs that His Majesty may, under clause 112 of the Constitution, confer the noble title upon any other person.
The judgment further stated that His Majesty clearly contemplated that succession to the noble titles he had created to reinforce his reign and the unity and wellbeing of the Kingdom would henceforth devolve according to law and not by royal pleasure.
The appellant has forcefully argued the case for reading Clause 44 together with clause 111 and sought to conflate the two. Yet it is apparent from a simple reading of the provisions that they relate to different processes: one a creation of titles of honour, the other the acquisition of established titles and estate thereto succession.
On the third ground of appeal, Section 44 of the Evidence Act imports into Tongan Law a presumption of legitimacy to the effect that a child born during a marriage is presumed to be the child of the marriage partners. Unless that presumption is rebutted by compelling evidence.
Justice Scott in the court below heard evidence on this issue and found that there was no compelling evidence to displace the presumption. In our opinion, Section 44 applies in this case.
“We do not see anything in it which is inconsistent with the Constitution and indeed the arguments advanced by the appellant proceeded on erroneous basis that His Majesty has an unfettered power to appoint hereditary nobles. The third ground fails also.”
In addition, there was a challenge to the legitimacy of the respondent. Modern scientific methods such as DNA testing may well be a reliable way of resolving such disputes but under the existing law no person can be compelled by Court order to submit to DNA testing, the judgment stated.
Result
“Accordingly we see no reason to interfere with the judgment of Justice Scott J that the respondent is the eldest legitimate son of the late Taulupe.”
The respondent sought costs in the Land Court. "We were not specifically addressed on that matter and accordingly costs in the Land Court should be dealt by Scott pursuant to the leave reserved."
The hearing of this appeal was held on July 22 this year with Judicial members including the King, Lord Chief Justice Paulsen, Rt Hon Lord Dalgety of Sikotilani Tonga, Rt Hon Lord Tupou of Kolofo’ou, Rt Hon Lord Madraiwiwi Tangatatonga and Mr Justice Cato.
Counsel for the appellant was Mr and Mrs Stephenson and Mr Laki Niu for the respondent.