Tu'i'onetoa v Kiu [2022] TOCA 10; AC 8 of 2022 (25 May 2022)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION

NUKU’ALOFA REGISTRY

AC 8 of 2022

(CV 75 of 2021)

BETWEEN:
POHIVA TU’I’ONETOA Applicant/Appellant
-and-
KELEKOLIO KIU Respondent

Application for stay of judgment below

RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr W.C. Edwards SC for the Applicant/Appellant
Mrs T. Cokanasiga for the Respondent
The Attorney General as amicus curiae
Application: 20 May 2022
Hearing: 25 May 2022
Ruling: 25 May 2022

1. This is an application for a stay of the judgment in Supreme Court proceeding CV 75 of 2021 by Cooper J delivered on 29 April 2022. There, the Judge found that the applicant (as respondent below) engaged in bribery contrary to ss 21(1) of the Electoral Act. Consequently, his Honour declared the applicant’s election as the representative for the Tongatapu 10 constituency void.
2. The grounds for the application are as follows:
   • (a) a notice of appeal was filed in this Court on 17 May 2022;
   • (b) if no stay of execution is ordered, the applicant will be unseated as the people’s representative for Tongatapu 10; and
   • (c) as a result of that unseating, Parliament will then proceed to a by-election before any final decision is made on the appeal.
3. In his affidavit in support, the appellant identified four main grounds of appeal and deposed that:
   • (a) the announcement made by the Minister of Finance, Tevita Lavemaau (the subject of the finding of bribery), was not made to a specific elector or elector but was “a general statement”; and
   • (b) a final decision now would be “drastic” if his appeal is successful, citing the decision in Lord Lasike v Kingdom of Tonga (CV 25/2015).
4. The principles applicable to applications of this kind have been canvased at length in Moeaki v Tapueluelu (AC 9 of 2022, 20 May 2022). For present purposes, I do not propose to repeat verbatim those principles. Suffice to say that pursuant to Order 9 rule 1 of the Court of Appeal Rules, unless ordered by the Court or the Supreme Court below, an appeal shall not operate as a stay of execution or a proceeding in the Court below. In considering this application two principles must be balanced against each other. First, that a successful litigant should not be deprived of the fruits of his litigation. Secondly, an appellant should not be deprived of the fruits of a successful appeal. Whether to grant or refuse a stay within the court’s discretion.
5. Other principles which are to be considered include that the Court should only grant a stay if there are special or exceptional circumstances. Those circumstances will include whether it is necessary to prevent the appeal, if successful, from being rendered nugatory. Also, where there is evidence that irreparable harm would be suffered by the appellant if the stay is not granted, including where there is a real risk that it would not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed. Finally, the court should also look to see whether the appeal has some prospects of success.
6. As has been experienced in the previous two stay applications and the urgency attending all of them, there has been very little opportunity for either party to the application, or indeed the Court, to undertake any detailed analysis of the grounds of appeal and their prospects of success. That was not something with which Mr Edwards engaged in his submissions. The focus of his submissions was on the consequences to the appellant if a stay is not granted and Parliament proceeds, as foreshadowed by the Lord Speaker in recent days, to unseat the appellant and then continue with a by-election for a replacement representative for Tongatapu 10.
7. Mrs Cokanasiga, on behalf of the respondent, opposed the application. She filed very helpful notices of opposition to the application and her client’s response to the notice of appeal. Both documents support the Judge’s findings below and, as a result, she submitted that the appellant’s appeal has no real prospect of success.
8. In addressing the grounds of appeal, Mrs Cokanasiga referred to numerous excerpts from the evidence at trial in support of her submission that the Judge was correct in his key finding that the offer of $50,000 by the then Minister of Finance was made to identifiable electors (namely, the women’s committee of Tongatapu 10). His Honour also found that regardless of whether the $50,000 was characterised as a grant or a gift, it was still an offer or promise to pay that sum to the women’s group within the extended definition of giving found in s. 21 of the Act.
9. Mrs Cokanasiga also supported the Judge’s finding that the appellant either authorised or assented to Mr Lavemaau’s offer of the $50,000 from government by reference to a range of circumstances including, in particular, the fact that Mr Lavemaau made the same statement some 27 days after the first occasion and that both were clearly made for the appellant’s election campaign.
10. Mrs Cokanasiga also pointed out that this application must be considered on its own merit and discreetly from the rulings on the two previous stay applications this Court has delivered in the last few working days. One of the key distinguishing features in this case is that counsel for the respondent has gone to considerable lengths to analyse the appellant’s grounds of appeal by reference to the evidence below and the Judge’s findings to demonstrate, at least to a certain extent, that the appeal does not have a real prospect of success.
11. Having considered the judgment below, the notice of appeal and the material filed on behalf of the respondent, it seems to me that the grounds of appeal which challenge the Judge’s finding that the $50,000 was offered to identifiable electors in the form of the women’s committee of Tongatapu 10 does not have any strong prospect of success. Similarly, the challenge to the finding below that the appellant assented to the offer being made the Mr Lavemaau on not one but two occasions does not appear to have strong prospects of success.
12. However, and solely for the purpose of this application, I do consider that there is an arguable case on appeal as to whether the relevant statements by Mr Lavemaau simply communicated the availability of a government grant which was subject to conditions to be fulfilled before any payment could be made or whether it was an outright gift on behalf of the then Prime Minister as the head of government without any conditions or pre-requisites for payment.
13. In my view, the Judge’s finding that it did not matter whether the $50,000 was characterised as a grant or a gift because it was an offer or promise to pay on behalf of the appellant, is a matter which should be further investigated by the Court of Appeal. That is because it is arguable, in my view, that if the statement was an offer or promise to pay, then it is unlikely to have been a grant. If the statement was a simple offer or promise to pay the $50,000, it would necessarily not be the subject of any procedures applicable to the availability of grants paid by government pursuant to specified criteria or qualifying conditions. On that issue, I am satisfied that there is some prospect of success.
14. However, of greater significance on this application is the question of where the balance of convenience lies. That task is to be approached by considering the respective consequences to the parties, and any other interests, if a stay is granted or refused.
15. Here, as Mrs Cokanasiga noted, the petitioner was not an unsuccessful candidate. He is, and was, a voter within the Tongatapu 10 constituency. It follows therefore that if a stay is granted, he will not suffer any prejudice other than the natural interest of any voter to ensure that they are validly represented by a candidate properly elected. That question is now before the Court of Appeal.
16. Conversely, it was common ground between the parties, and agreed by the Attorney General, that, as a matter of law, if a stay is not granted and the appellant is unseated and replaced but then his appeal is successful, he will not be able to be re-seated or restored to his previous position as the representative for Tongatapu 10. That certainty is supported by the principles referred to by Paulsen LCJ in the decision of Lord Lasike v Kingdom of Tonga [2017] TOSC 3, as referred to by Mr Edwards. The first is that, if here, the appellant is ultimately successful on appeal, the declaration below that his election was void will be quashed (and subject to any remittal for a re-trial) will be a nullity. In other words, he will have been validly elected. However, in the meantime, all acts which are performed pursuant to the judgment below are protected in law: Commissioner for Railways (NSW) v Cavanough [1935] HCA 45.
17. It will be observed that, so far as the decision records it, Lord Lasike did not apply for a stay of execution after his conviction for unlicensed ammunition. As a result, he was unseated and replaced both as a representative in the Legislative Assembly and as Speaker. As such, and as noted in the judgment, he was a “victim of the law”.
18. In my view, where the discretionary remedy of a stay of execution is available, this Court ought be mindful to avoid, if possible and appropriate, further potential for another victim of the law in a case pending appeal before it.
19. However, there is another interest at stake in this case. If a stay is granted, and the appellant here remains an active member of Parliament until his appeal is determined, and that appeal is ultimately unsuccessful, there is a risk that the validity of decisions by Parliament in the interim may be rendered uncertain. That is not in the public interest. As presently informed, however, it is not possible to assess the extent or magnitude of that risk or potential with any precision other than to observe that the longer the period between the reopening of Parliament and the determination of Mr Tui’onetoa’s appeal, the greater the risk.
20. That possibility is then to be weighed against the certainty that if the stay is refused and the judgment enforced and Mr Tu’ionetoa’s appeal is ultimately successful, he will not be able to be re-seated.
21. As discussed in Moeaki, there are a raft of conceivable consequences or species of harm to a person in that position which monetary compensation for lost remuneration or emoluments is unlikely to redress. Those considerations significantly increase the weight to be attached to the exceptional consequences which flow from a declaration following trial on an election petition that the election of a candidate is void.
22. Any risk of the fruits of a successful appeal being rendered nugatory if a stay is not granted will depend on whether in the time between any unseating of Dr Tu’i'onetoa and the determination of his appeal, a by-election has been conducted and a new representative for Tongatapu 10 elected. In other words, and from a practical perspective, the extent of the risks depends to a great extent on timing.
23. The relevant provisions of the Electoral Act and the Legislative Assembly Act prescribe the steps to be taken upon an election being declared void. However, they do not specify or prescribe the timing for any unseating or by-election. Those decisions ere matters for the Speaker in conjunction with the Electoral Commission. As presently informed, this Court is not aware of any definite timeframe within which those steps are presently proposed since the Speaker’s announcement two days ago (23 May 2022) that the re-opening of Parliament has been deferred until further notice.
24. In my view, this Court can play a part in ameliorating the risks for all concerned by convening a special session to hear and determine all appeals from the 2021 election petitions. The last of those petition trials is expected to be concluded by 27 May. Applying the present appeal period prescribed by the Court of Appeal Act of 42 days to the last of those cases, and in the expectation that the parties and counsel to the appeals will be able to file submissions promptly, it is envisaged that a special session could be held in the last week of July 2022, that is, approximately two months hence.
25. During that period, it may be possible for Parliament, the Lord Speaker and the Prime Minister to manage the work of the Assembly and Cabinet so as to minimise the risk of any decision being rendered uncertain in the event that Mr Tu’i’onetoa’s appeal is unsuccessful.
26. Finally, in my view a stay in this case would produce a result more consistent with the allied provision in clause 23 of the Constitution which deems persons who have been convicted of a criminal offence and sentenced to more than two years imprisonment to be disqualified from being elected as a representative of the Legislative Assembly. By amendment in 2013, following the consequences of his conviction to Lord Lasike, a proviso was inserted to the effect that where the person convicted has appealed, any disqualification is suspended until after the hearing and determination of the appeal.
27. In that regard, and in an endeavour to minimise future uncertainty and avoid further “victims of the law” in the context of election petitions, I respectfully recommend that consideration be given to amending the Electoral Act by the addition of a proviso akin to that found in clause 23 and a special, shorter period for filing appeals from judgments on election petitions.
28. For those reasons, I consider that, in this case, the course that carries the lower risk of injustice is to grant the stay application.
29. Accordingly, I order that the judgment of the Supreme Court in CV 75 of 2021, dated 29 April 2022, and any enforcement or execution thereof, be stayed pending the hearing and determination of the appeal in this proceeding.
30. The costs of the application are costs in the appeal.
    

NUKU’ALOFA	M. H. Whitten QC LCJ
25 May 2022	PRESIDENT