Paternity case against Tu'iha'ateiho fails [1]
Monday, December 22, 2008 - 20:11. Updated on Tuesday, July 28, 2015 - 14:42.
A patenity suit brought against the Tongan noble Hon. Tu'iha'ateiho by his uncle failed in the Land Court of Tonga because of a lack of solid evidence.
"The evidence in the present case is based on the very worst type of hearsay evidence of conjecture, scuttlebutt, and in some cases double hearsay," said Chief Justice Anthony Ford in making his judgment on December 12.
The plaintiff, Siaki Masiva Veikune (72) (commonly known, as Fonomanu) is the younger brother of the late noble Salesi Tu'iha'ateiho. During the course of the trial it became apparent that he was suffering from loss of memory because he did not recall bringing the claim against his nephew. He was later confirmed to be suffering from Alzheimer's disease.
The plaintiff disputed the Tu'iha'ateiho title claiming that the current noble Tu'iha'ateiho (48) was not the real son of his late brother and was instead the son of a matapule, namely a former Minister Police Siaosi Faletau (a former 'Akau'ola). He sought a DNA test to confirm that.
Hearsay evidence
Mr Jutice Ford said that the evidence produced by the plaintiff fell short of satisfying the proof required in relation to the presumption of legitimacy stated in Section 44 of the Evidence Act.
He specifically rejected evidence provided by Savelina Fa'oa when she said in 2004 she was 18 years old and the late noble who was in his 70's wanted to marry her; "because he wanted a rightful heir who the title would rightfully go to."
She said Salesi told her that the current noble was not his son and unfortunately he had registered him. However, the marriage did not take place because Salesi passed away. She added the late noble had known her since she was a schoolgirl at Ha'ateiho when her father was a church minister there and she used to do housework at his house.
Salesi's wife Afu died the previous year in 2003.
Other evidence provided by the plaintiff was also hearsay by one named Tu'ifua Mahafutau in a breadfruit incident in 1963 at Ha'ateiho, when he claimed 'Akau'ola admitted that the current noble was his son.
Another hearsay evidence was provided by Vuna Fa'otusia a first cousin of Salesi who said in 1979 in Hawaii he told the late noble that he was aware of the allegation that the defendant was not his son.
He suggested to him that he resolve the matter while he was still alive and again in a barbeque incident where he told him the allegation had to stop and Salesi responded, "Vea Sii is my son", but after three more beers he agreed to have a blood test to sort the matter."
Vuna said Salesi's wife Afu approached him later in 1996 not to pursue the matter of the blood test anymore.
Intrusive order
The Chief Justice ruled that in the absence of statutory authority the court does not have the power to order an adult person to undergo a blood test or DNA.
'Aminiasi Kefu, the Amicus Curiae said there is no legal basis for the plaintiff to apply to court to order the defendant to do a blood test because there is no statutory power to the land court to order a person to do a blood test without his consent. This is an intrusive order and therefore requires statutory authority to do so.
The plaintiff's claim seemed to have been based on a rumour stated by Tu'ifua Mahafutau, which seem to have developed into the truth and also very clearly hearsay, said 'Aminiasi.
"The plaintiff fails in his claim and the defendant is entitled to costs," concluded the Chief Justice.
The hearing was held on November 6, 19 and December 2.