The Land Court of Tonga this morning declared Tupou Tongaliuaki Filo’aulo Aleamotu’a (24) as the lawful holder of the hereditary title Fielakepa.

The young man has won his challenge in a land case against his uncle Tupou Tongapo'uli Aleamotu'a the Commander of His Majesty's Armed Forces, whom King Tupou VI appointed title holder in April this year.

Hon. Mr Justice Scott said it was the duty of the court in this case to listen to the evidence and apply the Constitution and the laws of Tonga to that evidence.

"The court has the highest respect for His Majesty and the Constitutional decisions taken by him."

However Mr Justice Scott quoted a decision of the Privy Council delivered in 1995: "In terms of the Constitution the court must apply the Constitution and the law and doing so in this case means no disrespect to His Majesty the King, but the court is sure that the proper application of the Constitution and the law will also be the wish of His Majesty, who, it appears may have been misinformed."

Lawful heir

The judge then declared firstly, that the plaintiff Tupou Tongaliuaki is the lawful holder of the title Fielakepa.

He declared that the appointment of the defendant (Tupou Tongapo'uli Aleamotu'a) as trustee of the Fielakepa estate was null and void.

Thirdly, he declared "that the publication in the Gazette of the Defendant’s name as holder of the title Fielakepa was made in error;

"The plaintiff is entitled for the publication of his name in the Gazette as the holder of the title Fielakepa."

Mr Justice Scott made no orders at this stage on the claim for money paid to the defendant or on the plaintiff’s claim for costs.

“If the plaintiff wishes to proceed with those claims the matters must be restored before the court for further arguments.”

Challenge

As the eldest son of an older brother, Tongaliuaki challenged the legitimacy of his uncle’s succession to the Fielakepa title after King Tupou VI appointed him. The trial was held from November 17-19.

The defendant Tupou Tongapo’uli Aleamotu’a was in court to hear the judgement. 

The young plaintiff Tongaliuaki was not present in court and had returned to New Zealand to continue his studies at the University of Canterbury.

His immediate family including his mother Mele Simiki, younger brother and aunties Manakovi Pahulu and Salote Aleamotu’a were present today to hear the judgement.

Background

The Tongan noble title "Fielakepa" has a substantial hereditary estate at Havelu, Tongatapu. 

In 1964 the title was inherited by Paula Longolongo'atumai Aleamotu'a ("Longolongo") who had married Tunakaimanu in 1959. They had three sons: Siosaia Tupou Aleamotu'a, born 1961 (Aleamotu'a); Mosese Tangaki Taulupe Ki Folaha Aleamotu'a, born 1956 (Taulupe); and Tupou Tongapo'uli, born 1966 (the defendant).

Longolongo died in 1997 and the title was inherited by his eldest son, Aleamotu'a (Baron Fielakepa).

In June 1991 Taulupe married Mele Simiki Aleamotu'a (Miki). The Plaintiff was born in October 1991. Following the marriage Taulupe and Miki had seven children, including six sons.

Taulupe died in 2007 and Aleamotu'a died in 2013, without issue.

On 18 April 2013 KIng Tupou VI appointed the Defendant as trustee of the Fielakepa estate. On 10 April 2015 he was recognised by the King as the lawful successor to the title Fielakepa, and a notice of the succession was published in the Gazette shortly afterward.

The Plaintiff clamed that he, not Tongapo'uli, was the lawful successor to the title and estate and sought declarations to that effect from the court. He also sought repayment to him of all moneys received by the Defendant in his capacity as trustee and holder of the title since 2013.

Law of Tonga

Mr Justice Scott stated 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 (Cap132).

"The effect of this law is not disputed. It is known as the law of primogeniture. 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. 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", he stated.

Mr Justice Scott went on to explain that under the Land Act the term "legitimate" applies to sons born in wedlock and does not extend to sons subsequently legitimated.

Section 41 explains that:

'Provided marriage precedes the birth of the child, such child is legitimate and capable of succeeding no matter how short the interval between the parents marriage and the birth.'

and

'where a person is proved to have been born during the continuance of a valid marriage between his mother and any man... 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.'

The Plaintiff told the court that during Aleamotu'a's lifetime his father Taulupe was the heir presumptive. Following his father's death he himself became the heir presumptive and that following Aleamotu'a's death he suceeded to the title by operation of law.

He contended that the King failed to comply with the provisions of section 40 (1) of the Land Act when he appointed the Defendant as trustee of the Fielakepa estate since the Plaintiff had already attained the age of 21 when the appointment was made. And he also contended that the King erred when causing the section 38 (1) notice to issue because, by virtue of Clause 111 of the Constitution it was the Plaintiff, not the Defendant whose name should have been published.

Defendant

Mr Justice Scott said that the Defendant made two submissions. "The first, apparently grounded in Clause 44 of the Constitution is that the King alone has the prerogative to confer titles. The second is the assertion that the Plaintiff's father was not Taulupe but one 'Atunaisa Fetokai."

The defendant therefore argued that the King was not bound to recognise the Plaintiff as the lawful successor to the title and had the power, instead, to confer it on the last holder's younger brother, the Defendant.

The Judge said that at the end of the trial a third argument submitted by defence counsel S. Tu'utafaiva was that the Defendant had merely accepted the appointment of trustee and the subsequent recognition of his enttilement to inherit the title, and had not requested it.

"Mr Tu'utafaiva suggested that these were decisions which lay with the exclusive prerogative of the King," the judge stated. But the King had not been joined as a party.

HM the King as a party

"The file reveals that when the writ was filed on 3 June 2015 the King was named as Second Defendant," he said. However, with reference to a legal precedent, on June 19 an amended Writ and Statement of Claim were filed omitting a Second Defendant.

"A distinction must, in my view, be drawn between the exercise by His Majesty of unfettered royal prerogatives retained by him under the Constitution, such as the power to confer titles (Clause 44) and the exercise by him either upon the advice of a body or person, of the powers specified in the relevant statue (e.g. Clause 50 A (1) or Cause 50 B)."

He stated a precedent (Tu'ipulotu v Kingdom of Tonga) where Hampton CJ held that in Tonga, as in England, the King in person (subject only to Clause 49) is immune from all actions at law whether civil or criminal. "No proceedings are maintainable against the King in person. The Courts are the King's court and the Courts have no jurisdiction over him."

"A second distinction must also be drawn between the powers exercised by His Majesty in relation to estates themselves ...and in relation to the titles appurtenant to those estates. The former powers are concerned with land whereas the latter only relate to titles."

He furthermore stated that any appeal from a Land Court determination relating to hereditary estates and titles is to the King in Privy Council. "As I see it, it would therefore be anomalous for His Majesty to be a party to the action in the Land Court."

He said there was no basis for the King to be joined as a party when breaches of  Sections 40 (1) and 38 (1) are alleged.

However, he said "The Court retains the right and indeed the duty to analyse the actions taken and, when it is of the view that the parameters within which the royal prerogative must be exercised have been exceeded it may, in its discretion, declare that to be the case."

The judge referred to previous cases dealing with contested hereditary titles.

"In my view the matters now before this Court for decision may be satisfactorily and comprehensively be dealt with without the need for any second defendant or third party to be joined," he said.

Hereditary titles

On the issue of Hereditary titles Mr Justice Scott referred to a precedent whereby the Privy Council quoted from an address to Parliament by King George Tupou I in 1875: "After referring to past practice by which, he said 'my rule was absolute and ...I could please myself to create Chiefs and alter titles' he proclaimed:

"I have made up my mind absolutely not to alter names or nominate Chiefs so that the estate shall go with the title and the succession shall be from father to son forever. The law of succession is stated in the Constitution...Should there be a dispute it shall be tried by the Justices of the Court in accordance with the usage of civilised Governments. You Chiefs of Tonga all of you have have titled estates when the Constitution came into force: I now affirm to you the right of yourself and your children by marriage to hold and possess your titles and estates for ever, as stated in the Constitution." 

"These two important principles, namely the inheritance of hereditary titles and estates according to the provisions of the Constitution and the duty of the Land Court to elucidate those provisions, remain," stated Mr Justice Scott.

He emphasised that the creation of an entirely new title under Clause 44 is quite sepaate from the process which takes place under Clause 111 which governs succession to already existing titles. 

"While both provisions are constitutional and the former appears to grant His Majesty an unfettered right to create such title, the second part of the clause reads:

'but it shall not be lawful for [The King'] to deprive anyone who has a hereditary title of his title...except in cases of treason.'

"Whereas in this case, there is no suggestion of treason, hereditary titles are inherited in the manner provided in Clause 111," said the Judge.

Justice Scott said that so long as there are heirs to succeed in accordance with Clause111 of the Constitution no appointment is necessary by the King of the country. "The heirs should inherit immediately. They inherit by descent and not by any appointment."

He said that in the present case the title of Fielakepa was lawfully held by Aleamotu'a until his death. The title Fielakepa and the associate estates were already the entitlement of Aleamotu'a's lawful successor.

"It was not suggested by the Defendant that he died without heir. In these circumstances it was not possible to create a second title of Fielakepa in order to deprive the heir of the same title."

Mr Justice Scott stated that  the only question that had to be anwered was "who is the person entitled to inherit?"

"In answering that question His Majesty was bound by Clause 111," he said.

"In the absense of any dispute as to the meaning and effect of Clause 111 it may be concluded that, if the Plaintiff is found by this Court to be the legitimate son of Taulupe then his claim to have inherited the title unpon the death of his uncle Aleamotu'a is unassailable."

Paternity

On the allegations by the Defendant that the Plaintiff could not succeed since he was not Taulupe's son, Mr Justice Scott noted that given the fact that the Plaintiff has six younger brothers, none alleged to be illegitimate, "the mere disinheritance of the Plaintiff could not avail the Defendant at all."

He said that a party seeking to rebut the presumption of legitimacy had the burden of so doing beyond reasonable doubt, and the question to be asked was "whether it had been proved that she could not have conceived by her husband." The admissable evidence suggested the opposite. The court could not order DNA testing.

"I am satisfied that the Defendant has failed to offer any evidence capable of rebutting the presumption that the Plaintiff is the legitimate son of Taulupe. Accordingly this is conclusively presumed to be the case," Mr Justice Scott said.