Lord Fielakepa told the Nuku’alofa Supreme Court yesterday that he was simply following decisions made by King Tupou VI and that his appointment as a trustee of the title, and later as title holder of the estate, was something he never asked for.

Lord Fielakepa, the Head of His Majesty's Armed Forces (HMAF), is the defendant in a legal challenge over the legitimacy of his succession to the hereditary title Fielakepa, brought by his nephew in a action.  

The defendant agreed in cross-examination that he was a trustee on behalf of Tongaliuaki, the lawful heir to the title.

Tupou Tongaliuaki Aleamotu’a (24) the plaintiff, is the eldest son of an older brother of Lord Fielakepa.

The trial began on Tuesday November 17 before Mr Justice Scott, at the Nuku’alofa Supreme Court. Yesterday, Wednesday, 18 November, the defence called three witnesses, including Lord Fielakepa.

The defence yesterday challenged the paternity of the plaintiff. A second witness, who believed he was the biological father of the plaintiff, told the court he had never claimed the baby as his own.

Counsel Sifa Tu’utafaiva said the case for the defendant is that Lord Fielakepa is simply following and carrying out decisions made by HM King Tupou VI.

He said the defendant did not ask to be appointed as trustee for the title Fielakepa, it was solely a decision by the King.

The plaintiff also did not ask to be appointed to the hereditary title Fielakepa, also a sole decision by the King. 

“Even though His Majesty is not a party to this proceeding the defence submission is that the King was entitled to appoint the defendant as trustee and holder of the title,” said Sifa.

The defence counsel said in regards to money received at the time of the defendant's trusteeship and after his appointment as titleholder, he was was entitled to spend that money to carry out the duties and obligations that came with those appointments.

Fielakepa

Lord Fielakepa, the first witness, confirmed his affidavit to true.

His counsel asked him about a letter prepared by his eldest brother Siosaia (the late Baron Fielakepa) that he signed. The defendant said he signed it but did not read it, because the content of the letter had been explained to him by his eldest brother.

The court heard the letter was about their family situation, at a time when they decided to force the defendant's older brother, Mosese Taulupe, to marry Mele Simiki (the plaintiff’s mother). Mele had gone to Fiji in 1991 with their first-born baby daughter, Halaevalu.

Lord Fielakepa said in court he believed it was disrespectful of Taulupe because Mele was the daughter of a reverend, and “we wanted to get the baby back”, he said.

Trustee income

The evidence included documents from the Ministry of Finance of his income as trustee for title and after appointed to the noble title.

The defendant told the court he spent the money from the title to pay for various obligations to his church, the community of his estate, including misinale offerings for two churches, in Havelu and Kolomotu’a, which he estimated at $1,000 each. There were also expenses to be paid for the Coronation events, including Tongan fine mats, koniseti (fundraising), and clubs. “People of Havelu contributed, but I also contributed. Money was aimed for the community,” he said.

Lord Fielakepa told his counsel that he had kept the record of money spent as trustee and was briefed by a Ministry of Lands staff to file a report every six-months. He did this after the first six-months but none was made after.

Cross-examination

When cross-examined by Laki Niu, counsel for the plaintiff, the defendant was asked whether he agreed that if Taulupe were still alive then Taulupe would be the lawful successor to the hereditary title.

Lord Fielakepa answered, yes.

“Because Taulupe died, his eldest legitimate son would be the lawful successor, would he be not?” asked Laki.

The defendant replied it would be up to the King.

Laki asked, “What is the difference? If it was Taulupe, he would be appointed by the king, and if it was his son the king would not appoint him?”

The defendant answered that he knows Taulupe is his brother because they were the closest in their family.

Trustee for Tongaliuaki

The defendant was then shown a copy of the appointment made on February 18, 2013 as trustee for the title. He confirmed it was the correct copy.

Laki read this in court in Tongan, which translated that the defendant's trusteeship was on behalf of Tongaliuaki, the lawful heir to the title, who was not yet of age.

He was asked about the original copy of this appointment read to him by the Lord Chamberlain, Viela Tupou.

Lord Fielakepa said it was misplaced after he moved office in December last year, but he went to the Ministry of Lands, the Bank of Tonga, Treasury and they too did not have a copy.

Counsel asked, “It is very clear in your appointment by His Majesty that you were trustee on behalf of Tongaliuaki, the lawful heir to the title?”

Lord Fielakepa said, yes, he was trustee for him.

Counsel asked him whether he disagreed with his appointment as trustee when it was read to him then?

Lord Fielakepa said, no. 

“You made no objection to Viela when she read this out to you, to say you do not want this appointment?” asked Laki.

Lord Fielakepa said, no, he did not.

“You would agree nobles receive rent payments and/or salary from their titles and would spend the money as they wished?” asked Laki.

Lord Fielakepa said, “I can’t speak for all the nobles but, yes”

Laki asked the defendant, if he thought that as trustee he was not a noble and it did not require him to carry out the normal functions of the noble, which was also not stated in the appointment.

The defendant said he had to do it.

Estate 

Mr Justice Scott then asked for the defendant’s clairification in regards to money he had received from when he was appointed as trustee of the title until he became the titleholder.

The judge asked if the correct figure the defendant had received from 18 February, 2013 to 11 November 2015, was around $56,546 pa’anga.

The defendant then tried to explain that had paid to to three churches misinale estimated at $1,000 each. He said he spent around $40,000 for coronation among other duties like making contributions to koniseti and clubs.

“Just please estimate to the court how much of the $56,546 pa’anga you spent on official duties and how much did you spend on your family?” the judge asked.

The defendant said 80 percent was on official duties.

Alleged father

The second witness ‘was Atunaisa Fetokai (48) who the defence claimed was the biological father of the plainfiff, Tongaliuaki.

In his evidence in chief he confirmed his affidavit to be true. 

While being questioned by Laki Niu, he confirmed that he had a sexual relationship with the plaintiff’s mother, Mele Simiki, from around November 1990 but was not sure exactly when their relationship ended. He then said it ended before she went to Fiji, to get married to Taulupe.

The court had heard that the plaintiff’s parents, Taulupe ‘Aleamotua and Mele Simiki got married in June 1991.

The witness said that before Mele Simiki went to Fiji she told him she was pregnant and that he was the father. He then told her to abort the baby because he was ashamed for Taulupe and his family. 

“I was ashamed because she already had a daughter with Taulupe before me,” he said.

“Did you really mean that for the baby to be killed?” asked Laki.

The witness said, no.

“Did you say it because you knew the baby was not yours?” asked Laki

“I only said that because she said she was pregnant and I was the father,” said the witness.

The counsel put to the witness emails between him and the plaintiff's mother from about 2008 to 2009. An affidavit by another witness was attached to his email exchanges with Mele Simiki. Part of an email sent by Mele Simiki told him that Tongaliuaki was not his son and it happened before they met. 

“That meant she was pregnant before you met?” asked the counsel.

The witness answered that she told him it was his baby but admitted to queries of clarifications from Mr Justice Scott that he did not recall replying in an email to Mele Simiki to rebut this.

When re-examined by Counsel for the defendant, Sifa Tu’utafaiva, the witness confirmed that if the baby was his son he would not say that (to abort). He said it was his first reaction.

“Have you ever claimed the baby to be yours?” asked Sifa.

The witness said, no.

Mr Justice Scott then put to the witness whether he was aware that procuring abortion is a serious criminal offence.

The witness said he did not mean it.

The defence case also questioned the last witness Kalolaine Lolohea from New Zealand. 

Counsel’s closing submissions will be held on Thursday, 19 November before the judge sets a date to deliver his judgment.

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