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Application by Latu for Illegitimation of Birth [2009] TOLawRp 28; [2009] Tonga LR 262 (19 June 2009)

IN THE SUPREME OF TONGA
Supreme Court, Nuku'alofa

FA 129/2006

Application by Latu for Illegitimation of Birth

Ford CJ
17 June 2009; 19 June 2009

Legitimacy – application to change birth certificate record to illegitimate - incorrect birth certificate – no basis for application – application struck out

Practice and procedure – application to strike out – no chance of success – struck out

The applicant, who was 75 years of age, made application to the Registrar General on 18 December 2006 to amend the birth certificate relating to his son, Sione 'Atu Latu (the respondent), to record his birth as being "illegitimate". He claimed that Sione's birth had been registered as legitimate by mistake. The applicant claimed that at the time the respondent was born in 1960 he (the applicant) was living in a de facto relationship with the respondent's mother, 'Akata Peeki, and he did not marry 'Akata until 7 January 1961 (after the date of the respondent's birth). The applicant filed a birth certificate showing the respondent's date of birth as 15 January 1960 and a marriage certificate confirming the date of his marriage to 'Akata as 7 January 1961. 'Akata had been married to one Sione Takaunove and the decree absolute in respect of that marriage was not issued until 17 March 1960. The respondent applied to strike out the applicant's application on the grounds that there was no proper basis for the application because the birth certificate that had been produced showed an incorrect date of birth for the respondent.

Held:

1. The Registrar confirmed that the birth certificate showing the respondent's date of birth as 15 January 1960 was incorrect and that the actual date of the respondent's birth was 19 October 1960.

2. The respondent's legal status was governed by the provisions of the Legitimacy Act (Cap 32). As his mother was no longer married at the time of his birth the respondent was deemed to have been legitimated as from the date of her remarriage to the applicant. The application by the applicant to have the respondent's status recorded as illegitimate could not possibly succeed.

3. The application was struck out.

Statute considered:

Legitimacy Act (Cap 32)

Counsel for the applicant : Mrs Vaihu
Counsel for the respondent : Mr Edwards

Judgment

[1] The applicant, who was 75 years of age at the time, made application to the Registrar General on 18 December 2006 to amend the birth certificate relating to his son, Sione 'Atu Latu (the respondent), to record his birth as being "illegitimate". He claimed that Sione's birth had been registered as legitimate by mistake. The matter has been delayed because I ordered that the application had to be served on the respondent's mother who lives in Hawaii and on the respondent himself who lives in North Carolina, USA. The applicant had difficulties in locating the exact whereabouts for service of both the respondent and the mother.

[2] The thrust of the applicant's claim was that at the time the respondent was born back in 1960 he (the applicant) was living in a de facto relationship with the respondent's mother, 'Akata Peeki, and he did not marry 'Akata until 7 January 1961 which was after the date of the respondent's birth. Along with his application, the applicant filed a birth certificate showing the respondent's date of birth as 15/1/1960 and a marriage certificate confirming the date of his marriage to 'Akata as 7 January 1961. The reason for the application is not apparent from the papers before the Court but presumably, as in most such cases, it will be related to hereditary entitlements.

[3] On 25 February 3, 2009, Mr Edwards, acting for the respondent, filed an application to strike out the applicant's application upon the grounds that there was no proper basis for the application because the birth certificate that had been produced showed an incorrect date of birth for the respondent. The present Ruling relates to the respondent's strikeout application.

[4] In support of the strikeout application, Mr Edwards filed an affidavit obtained from the Court Registrar, Frederick Tuita, in which the Registrar confirmed that the birth certificate showing the respondent's date of birth as 15 January 1960 was incorrect. The Registrar attached as an exhibit to his affidavit another birth certificate which he deposed showed the correct date of birth which was 19 October 1960. The Registrar was not called as a witness but no challenge was made by Mrs Vaihu to the accuracy of the contents of his sworn affidavit. Unfortunately, however, because the Registrar did not give evidence I was unable to explore how the birth certificate showing the incorrect date of birth came to be in existence.

[5] The significance of the correct date of birth is that the respondent's mother, 'Akata, had been married to one Sione Takaunove and the decree absolute in respect of that marriage was not issued until 17 March 1960 which, of course, was after the date of birth shown in the birth certificate produced by the applicant but before the date of birth shown in what transpires to be the correct birth certificate.

[6] Mr Edward's strikeout application was based on section 3(1) and (2) of the Legitimacy Act (Cap 32) which states:

"3.(1) Subject to the provisions of this section, where the parents of an illegitimate person marry or have married one another, whether before or after the commencement of this Act, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in Tonga, render that person, if living, legitimate from the commencement of this Act, or from the date of the marriage, whichever last happens."

(2) Nothing in this Act contained shall operate to legitimate a person whose father or mother was married to a third person when the illegitimate person was born."

[7] The respondent's legal status is governed by these provisions. As his mother was no longer married at the time of his birth he is deemed to have been legitimated as from the date of her remarriage to the applicant. For this reason the application by the applicant to have the respondent's status recorded as illegitimate cannot possibly succeed. The application is, accordingly, struck out. The respondent is awarded costs to be agreed or taxed.