Attorney-General v Fuko [2002] TOCA 9; CA 09 & 10 2002 (23 July 2002)

IN THE OF COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

APP. NO. 9/2002
APP. NO. 10/2002

BETWEEN:

ATTORNEY – GENERAL
Appellant

AND:

SIONE TEISINA FUKO
Respondent

AND BETWEEN:

ATTORNEY – GENERAL
Appellant

AND:

JOE TU’ILATAI MATAELE
Respondent

Coram: Burchett J
Tompkins J
Beaumont J

Counsel: For Appellant: Mr Pouono
Respondent Fuko in person
For Respondent Mataele: Mr Foliaki

Date of hearing: 16 July 2002
Date of judgment: 23 July 2002

JUDGMENT OF THE COURT

[1] In a series of cases, particularly Vaikona v Fuko (No. 2) [1990] Tongan LR 68; Fuko v Vaikona [1990] Tongan LR 148; Attorney – General v Tupouniua and ‘Ilavalu (Ward CJ, unreported, 25 February 1999); and Namoa v Attorney – General (Burchett, Tompkins and Beaumont JJ, unreported, 6 March 2002), the Supreme Court and the Court of Appeal have insisted upon the observance of the clear terms of Clause 65 of the Constitution, which, so far as is relevant, provides:

“65. Representatives of the people shall be chosen by ballot and any person who is qualified to be an elector may be chosen as a representative, save that no person may be chosen against whom an order has been made in any Court in the Kingdom for the payment of a specific sum of money the whole or any part of which remains outstanding or if ordered to pay by instalments the whole or any part of such instalments remain outstanding on the day on which such person submits his nomination paper to the Returning Officer ... .”

In the affairs of the kingdom, there can be no drawing back from obedience to the Constitution. The representatives of the people, who are involved in the making of the laws, must themselves comply, and be clearly seen to comply, with the fundamental law of Tonga.

[2] The present appeals raise a short point which did not arise directly for decision in any of the previous cases – whether the whole or any part of an order for the payment of a specific sum of money “remains outstanding” in a case where an order had been made by a Court for the payment of a sum of money and agreement has been reached for payment of the sum by instalments, all of which that are then due for payment have been paid at the nomination day. In other words, in Clause 65, does “remains outstanding ... on the day” mean that the sum or part of it remains both due (or, perhaps, overdue) for payment and unpaid, or does the clause apply simply on the basis that the sum or part of it remains unpaid on the day, even if there is no obligation to make any payment by then?

[3] The Constitution must be obeyed, but in accordance with its true sense. The word “outstanding”, when applied to a sum of money, is not a term of legal art. It is an ordinary word, capable of signifying, relevantly, “that remains undetermined, unsettled or unpaid”: Shorter Oxford English Dictionary, 3^rd ed. (1978). When it appears in a Constitutional provision framed to express a ground of exclusion of a person from candidacy for election as a representative of the people, the context strongly suggests some serious default is involved, making the candidate unworthy, or at least a circumstance disqualifying anyone to whom it applies from holding the position of a representative of the people. That a payment has not been made, which is not due for payment, seems to fall well short of this.

[4] If the word “outstanding”, in itself, had only one meaning, that being simply “unpaid”, it would still be necessary to read it in its context, which might mould it to a qualified meaning. For words must always yield to their context, and the sense of any document is to be found in its sentences rather than in single words: see Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 397, citing R v Brown [1996] 1 AC 543 at 561, per Lord Hoffmann; The King v Wilson; Ex parte Kisch [1934] HCA 63; (1934) 52 CLR 234 at 244. In the last case (ubi cit.), Dixon J said:

“The rules of interpretation require us to take expressions in their context, and to construe them with proper regard to the subject matter with which the instrument deals and the objects it seeks to achieve, so as to arrive at the meaning attached to them by those who use them. To ascertain this meaning the compound expression must be taken and not its distintegrated parts” – as his Honour had called “its component words”.

More than half a century later, in the passage cited from R v Brown, Lord Hoffmann said:

“The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.”

[5] But the word “outstanding” has often been regarded as flexible, and as capable of either of the meanings suggested, according to the context. Black’s Law Dictionary, 4^th ed. (1968) shows that, in the United States, “outstanding” has been interpreted as “remaining undischarged; unpaid; uncollected”, or as “constituting an effective obligation”. Similarly, Burton’s Legal Thesaurus (1980) shows it may mean simply “unpaid”, or it may refer to a debt that is “due” or “receivable”. These American works are consistent with the Oxford Thesaurus (1993), which suggests as relevant “synonyms”, on the one hand “unpaid”, but on the other “unsettled”, “on – going”, “unresolved”, and “due”, “receivable” or “payable”. If, indeed, as ordinary English, the word may carry the sense of “payable”, it is relevant that, in law, as Jowitt’s Dictionary of English Law, 2^nd ed. (1977), makes clear, “when used without qualification ‘payable’ means that the debt is payable at once, as opposed to ‘owing’”.

[6] However, although “outstanding” is not a term of art, there are some authorities that throw light on its meaning in a legal context. In M^c Cormick v M^c Cormick [1994] SCLR 958, a Scottish decision, the Outer House of the Court of Session held that a tax liability which was not immediately payable and was to be discharged from year to year in the ordinary manner was not an “outstanding debt”. The same approach had been taken in two Indian decisions which are referred to in Venkataramaiya’s Law Lexicon, 2^nd ed. (1983), vol. 3: Commissioner of Income – tax v Kantilal Manilal (1973) 88 I.T.R. 125 at 135; and Commissioner of Wealth – tax v Benarsi Prasad Kedia (1970) 77 I.T.R. 159 at 164 – 165. In the former case, “outstanding” was said, “according to its ordinary connotation”, to mean “though payable, not paid”. The Court said: “When the amount of tax is payable but is not paid, it would be outstanding. It stands unpaid though payable; in other words, it connotes default on the part of the debtor in carrying out his obligation to make payment of the amount due from him.” In the other case, the Court said: “[I]t seems that in order to be ‘outstanding’ the amount must be such which the assessee is obliged to pay prior to the relevant valuation date and not an amount which the assessee has the right to pay subsequent to the valuation date. An amount which according to the instalment scheme the assessee has an option or right to pay on a date subsequent to the relevant valuation date cannot in that context be said to be ‘outstanding’ on the relevant valuation date.”

[7] In our opinion, the context of Clause 65 also requires that it be understood as referring to an order for payment that is “outstanding” in the sense that it stands unpaid, though payable.

[8] In each of the present appeals, the candidate had reached an agreement with the judgment creditor for payment by instalments of the amount referred to in a relevant order of the Supreme Court. Each candidate had fully complied, at the date of the submission of his nomination paper to the Returning Officer, with the terms of his instalment agreement. In that situation, the Chief Justice was right to hold that the candidate was not disqualified by Clause 65 from being chosen as a representative of the people.

[9] The nature of the agreements involved, as agreements for payment by instalments, led counsel for the appellant Attorney – General to argue that they were required to be incorporated in orders of the Court. But the respondent candidates did not need to rely on that part of Clause 65 which refers to orders “to pay by instalments”; it was sufficient for them to say that no part of the sum ordered to be paid was “outstanding” because, by the agreement, no part was payable on the day of nomination.

[10] For these reasons, the Attorney – General’s appeals are dismissed with costs.

Burchett J
Tompkins J
Beaumont J