Saulala v Piukala [2022] TOCA 13; AC 10 of 2022 (24 May 2022)

IN THE COURT OF APPELA OF TONGA
NUKU’ALOFA REGISTRY
ELECTORAL REGISTRY

AC 10 of 2022
(CV 74 of 2021)

BETWEEN:
SIONE SANGSTER SAULALA Appellant
-and-
PAULA PIVENI PIUKALA Respondent

Application for stay of judgment

RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr Clive Edwards SC for the Appellant
The Respondent in person
The Attorney General as amicus curiae
Application: 20 May 2022
Hearing: 24 May 2022
Ruling: 24 May 2022

1. On 2 May 2022, in proceedings CV 74 of 2021, the appellant, who was the respondent below, was found guilty of having committed two acts of bribery in contravention of s. 21 of the Electoral Act. In consequence, and pursuant to ss 32 and 37 of the said Act, Mr Saulala’s election as the representative of Tongatapu 7 constituency on 18 November 2021 was declared void. A certificate to that effect as required by the Act was forwarded to the Speaker of the Legislative Assembly.
2. In this proceeding, on 20 May 2022, Mr Saulala filed a Notice of Appeal together with an application to stay enforcement or execution of the judgment below pending the hearing and determination of the appeal.
3. In his supporting affidavit, Mr Saulala deposed, relevantly, that:
   • (a) there are three grounds to his appeal;
   • (b) this Court should defer execution of the judgment below which will involve, firstly, his unseating from Parliament, to enable his appeal to be heard;
   • (c) a final decision now will be “drastic” if his appeal is successful; and
   • (d) in Lord Lasike v Kingdom of Tonga (CV 35 of 2015), Lord Lasike was unseated for a conviction in relation to possession of unlicensed ammunition, but although his appeal against conviction was granted, he was unable to be re-seated in Parliament.
4. Mr Edwards echoed the contents of Mr Saulala’s affidavit and added that the annual national budget for 2023 is scheduled for debate before Parliament when it repoens and that each Minister is required to present the budgets for their respective ministries and answer questions in relation to allocations during debates on the budget in the Assembly. The budget is to be passed by 1 July 2022. As noted in the judgment below, after his election, Mr Saulala was appointed a Minister of Cabinet.
5. After a number of deferrals, the Speaker of the Legislative Assembly last week announced that Parliament would be re-opening yesterday, Monday, the 23rd of May 2022. However, on that day, the Speaker again announced that the reopening of Parliament would be deferred until further notice. Nonetheless, I considered that this application (and others like it filed in the recent days) ought be dealt with as a matter of urgency.
6. Mr Piukala opposed the application. He submitted that:
   • (a) Mr Saulala’s grounds of appeal, and for a stay, are all “matters of self-interest”;
   • (b) there are “no genuine issues” raised by the notice of appeal and that all the matters referred to in the Notice of Appeal had been fully considered in the judgment below;
   • (c) by reason of the judgment below declaring Mr Sauala’s election void, any stay would contravene clause 51(3)(c) of the Constitution which prohibits Ministers of the Crown from remaining so after being declared ineligible.
7. The Attorney General appeared as amicus curiae. She referred to the decision of Webster J in Vaikona v Fuko (No. 3) [1990] Tonga LR 114. There, his Honour refused a similar application for two principal reasons. Firstly, he did not regard the grounds shown in the Notice of Appeal there to be very strong, although he was reluctant (quite rightly) to say much more than that given that it was an appeal from his decision, as is the case here. Secondly, his Honour adopted a reference by Martin J in the 1987 decision in Paasi v Sanft & anor to the effect that the people of the relevant constituency are entitled to be represented by a candidate who has been “properly elected and clearly properly elected”. I will return to Vaikona again shortly.
8. The Madam Attorney also submitted that;
   • (a) the exercise before the court is one of balancing the various considerations and consequences to either parties should a stay be granted or refused;
   • (b) all circumstances should be considered and the risks inherent in either course should be weighed in the exercise of the Court’s discretion;
   • (c) the Court should consider the risks of injustice to one or both parties if the stay is granted or refused;
   • (d) as the judge below, I am well-versed with the grounds of appeal and am in a position to opine on their prospects of success.
9. Order 9 rule 1 of the Court of Appeal Rules provides that unless otherwise ordered by the Court or the Supreme Court, an appeal shall not operate as a stay of execution or a proceeding in the court below.
10. The principles relevant to an application for stay of execution of judgment pending appeal are well settled and have, in previous decisions, been derived from the UK Whitebook. In this Court’s decision in AJ Limited v FC Nichols Wholesale Limited [2006] TOCA 1, it was observed that two principles have to be balanced against each other as to whether a stay of execution pending appeal should be granted. First, a successful litigant should not be deprived of the fruits of his litigation. Second, an appellant should not be deprived of the fruits of a successful appeal. Whether to grant or refuse a stay is entirely within the Court’s discretion.
11. Other principles include:^[1]
    • (a) the jurisdiction of the Court to make an order preserving the status quo pending the hearing of an appeal ‘rests upon the inherent power to preserve from futility the exercise of the Court's jurisdiction to allow an appeal’;^[2]
    • (b) the court will, as a rule, only grant a stay if there are special circumstances;^[3]
    • (c) special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being rendered nugatory;^[4]
    • (d) the so-called ‘stringent test’^[5] requires evidence of irreparable harm being suffered by the appellant if the stay is not granted such as where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed;^[6]
    • (e) the ‘more relaxed test’ requires an applicant to demonstrate that, without a stay of execution, he will be ruined and that he has an appeal which has some prospect of success;^[7] and
    • (f) ultimately, in determining whether to grant a stay or not, it is for the Court to consider where lies the balance of convenience.
12. Mr Edwards did not make any submissions about the prospects of success of any of the grounds set out in Mr Saulala’s notice of appeal. Given the compressed timeframe within which this application was filed and has had to be called on for hearing, it is understandable that neither party has endeavoured to undertake any detailed assessment of the prospects of success of the appeal by reference to the reasons for judgment below.
13. None of the three grounds of appeal raise questions of law; they are all concerned with the primary Court’s treatment of the evidence. Suffice to say that each of the grounds advances a view of the evidence which was submitted on behalf of Mr Saulala at trial which was rejected in the judgment for the reasons provided therein. Grounds two and three include allegations that the Court below failed to consider the evidence of Tevita Tauelangi, the son of ‘Ahio Tauelangi named in the petition. A review of the reasons for judgment reveals that Tevita Tauelangi was referred to more than a dozen times and that one section of the judgment was devoted entirely to a summary of his affidavit evidence, noting that he was not required for cross-examination.
14. However, just as Webster J observed in Vaikona, I too am reluctant to express any greater assessment on the prospects of the stated grounds of appeal given that they emanate from my decision below. Therefore, for the purposes of this application, I will treat that factor as neutral.
15. In considering the balance of convenience, it is necessary to consider the competing consequences to each party if the stay is refused or granted.
16. If a stay is granted and Mr Saulala’s appeal is ultimately unsuccessful, the only harm suffered by Mr Piukala will be that his right to participate in any by-election will be deferred. However, if a stay is granted and the appeal is unsuccessful, then there will be a risk or potential for any decision by Parliament in the meantime may be rendered uncertain. However, the magnitude of that risk is impossible to determine at this stage. There is no doubt that there is a strong public interest in the work of Parliament being considered, and in fact legally being, certain at all times. In Woods & Geary v The Ombudsman [2002] VSCA 133, the Victorian Court of Appeal opined that in cases such as the present, the public interest should outweigh any individual interest.
17. On the other hand, if a stay is not granted and Mr Saulala is unseated and a by-election is conducted and his appeal is thereafter successful, the question arises as to whether he could be re-seated.
18. In Vaikona, Webster J stated:

“Nor can it be said that if this is proved wrong and the appeal is successful the appeal would be rendered nugatory if a stay is refused. Mr Fuko may have lost the right to sit in the Assembly for two or three months but if the appeal were to be allowed, he would still be entitled to sit for another two and a half years until the next election.”

19. Clearly, His Honour proceeded on the basis that if Mr Fuko was successful on his appeal and notwithstanding that in the interim, he may have been replaced by another representative duly elected in a by-election, that he could nonetheless be re-seated.
20. However, in the more recent decision of Lasike v Kingdom of Tonga [2017] TOSC 3, Lord Lasike was convicted in 2012 of having unlicensed ammunition for which he was fined. Consequently, he was stripped of his hereditary titles and lands and unseated as a member of Parliament and Speaker of the Assembly. His appeal was ultimately successful, and his conviction was quashed. He brought proceedings for declaratory relief to the effect that he should be re-instated as a member of Parliament and Speaker of the house and he also sought compensation for his remuneration and emoluments payable during the period he was unseated.
21. Among the authorities Chief Justice Paulsen considered was Commissioner for Railways (NSW) v Cavanough [1935] HCA 45, in which the High Court of Australia set out two principles which are relevant to the instant case. Firstly, if here, Mr Saulala is successful on appeal (and unless a re-trial is ordered), then prima facie, he would be entitled to be restored to all things that he may have lost by such erroneous judgment and proceeding and shall stand in every respect as if he had never been the subject of the declaration that his election was void or the findings of bribery against him in respect of which the judgment below was pronounced. Secondly, however, “acts done in reliance upon a judicial order are protected in law; ... acts done on the exigency of a judicial order afterwards reversed are protected: They are acts done in the execution of justice which are compulsive”. For those reasons, Paulsen LCJ refused the declarations sought by Lord Lasike. In other words, he could not be re-seated and was left to an order for compensation. A detailed discussion of the decision and its ramifications is contained in the recent decision of Moeaki v Tapueluelu (AC 9 of 2022, 20 May 2022)
22. The Attorney General submitted that the principles discussed in Lasike should remain good law in Tonga and be applied to this application. On that basis, she supported the grant of a stay.
23. Applying those principles to the instant case, if:
    • (a) a stay is not granted; and
    • (b) Mr Saulala is unseated; and
    • (c) a by-election is conducted and a replacement representative elected before his appeal can be determined; and
    • (d) then, if his appeal is successful,

he will not be able to be re-seated, in which case, his appeal, if successful, will be rendered nugatory.

24. It is that nature of election petitions and the consequences of a declaration that an election is void by reason of contravention of provisions such as s. 21 of the Act which, in my view, constitute exceptional circumstances for the purposes of considering this stay application. Further, any residual claim for damages or compensation, such as in the Lasike case, would likely be inadequate. That is because a conviction for electoral bribery is very different to one for unlicensed ammunition. It is inherent in a finding of bribery that Mr Saulala engaged in dishonest practices during the election campaign. That is a very important matter to be considered in terms of the effects on his reputation. Even if he is successful in his appeal, it is always impossible to know the extent to which the views of electors may still be affected or tainted by any stigma arising from the original judgment, particularly if the judgment is enforced by Mr Saulala being unseated and a by-election being conducted for the constituency.
25. There is a further consideration. Clause 23 of the Constitution provides that no person having being convicted of a offence and sentenced to imprisonment for more than two years shall hold any office under the government whether by emolument or honour, nor shall he be qualified to vote for nor to be elected a representative of the Legislative Assembly unless he has received from the King a pardon together with a declaration that he is freed from the disabilities to which he would otherwise be subject under the clause. However, there follows a proviso that the operation of the clause shall be suspended in any case until the expiration of 42 days after the date of the conviction, and in cases where notice of appeal or leave to appeal is given within 42 days after the date of conviction, until the determination of the appeal, and if the conviction is quashed on appeal ... then the clause shall not have any effect. The proviso to clause 23 creates a situation akin to a stay of execution of the judgment pending appeal. The proviso was inserted by amendment in 2013 in apparent response to the Lasike case.
26. Even though the findings of electoral bribery contrary to s. 21 of the Electoral Act may be regarded as quasi-criminal in nature, for the purposes of determining the Electoral Petition, the civil standard of proof is applied. And yet, without a stay, the consequences are similar to the substantive provision of clause 23. Therefore, to grant a stay in this case would produce an outcome more consistent with the proviso to clause 23 which deals with a related matter.
27. Ultimately then, if a stay is granted, the public interest may be affected if the validity any decisions of Parliament between now and when the appeal is determined turn out to be uncertain if the appeal is unsuccessful; whereas, if a stay is not granted, and Mr Saulala is replaced but his appeal turns out to be successful, it is certain, as a matter of law, that he will not be able to re-seated.
28. At present, the next session of the Court of Appeal is scheduled to commence in the first week of October this year. That is a significant period within which any potential uncertainty which may affect the work of the Assembly while Mr Saulala remains a member is to be considered. However, in order to ameliorate the extent of the risks discussed to both sides and the public interest, it is proposed to convene a special session of the Court of Appeal to hear and determine all appeals from the recent decisions on the 2021 election petitions. Taking into account the current prescribed appeal period of 42 days from the likely date of the judgment of the last of the petitions to be heard and applying very compressed timetable for the filing of submissions, it is presently envisaged that the special session could be conducted in the last week of July this year.
29. I conclude by suggesting that consideration be given to amending the Electoral Act to include a proviso similar to that found in clause 23 and prescribing a shorter period for filing appeals from decisions on election petitions. The combination of those two measures would enhance certainty and reduce the timeframe within which any adverse risks might present before appeals on election petitions can be heard and determined.
30. Weighing all those considerations in the balance, I consider that the course which carries the lower risk of injustice is to grant the stay.
31. Accordingly, I order that the judgment of the Supreme Court in proceeding CV 74 of 2021, dated 2 May 2022, be stayed and that no further action be taken to enforce or execute it pending the hearing and determination of the appeal against that judgment in this proceeding.
32. The costs of this application will be costs in the appeal.
    

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

---

^[1] From Attorney General v Angilau [2021] TOCA 24 at [14].
^[2] Beljajev v Director of Public Prosecutions [1991] HCA 16; (1991) 173 CLR 28 at [6], referring to Chamberlain v. The Queen (No. 1) [1983] HCA 13; (1983) 153 CLR 514 at 518.
^[3] Thompson v Tonga Development Bank [2004] Tonga LR 11, citing Halsbury’s, Vol 17, at [455].
^[4] Beljajev v DPP, supra, at [7], referring to Federal Commissioner of Taxation v. Myer Emporium Ltd. (No. 1) [1986] HCA 13; (1986) 160 CLR 220 at 222-223.
^[5] Referred to by Ward CJ in ‘Uta’atu v Free Wesleyan Church of Tonga, No. 26/90, 12 August 1994, citing Atkins v Great Western Railway (1886) 2 TLR 400.
^[6] McBride v Sandland (No 2) (1918) 25 CLR 369.
^[7] ‘Uta’atu v Free Wesleyan Church of Tonga, supra, citing Linotype-Hell Finance Ltd v Baker [1992] 4 All ER 887, 888 (CA).