Tu'i'onetoa v Lanumata [2022] TOCA 16; AC 13 of 2022 (2 June 2022)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION

NUKU’ALOFA REGISTRY

AC 13 of 2022
(CV 73 of 2021)

BETWEEN:

POHIVA TU’I’ONETOA

Applicant/Appellant

-and-

KAPELIELI MILITONI LANUMATA
Respondent

Application for a stay of the judgment below
RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr W.C. Edwards SC for the Applicant/Appellant
Mr D. Corbett for the Respondent
Application: 1 June 2022
Hearing: 2 June 2022
Ruling: 2 June 2022

1. This is an application for a stay of execution of the judgment of the Supreme Court in proceedings CV 73 of 2021. That judgment was delivered by me ex-tempore last Friday evening. The transcript of the lengthy decision is still in the process of being finalised.
2. Yesterday, the appellant filed a Notice of Appeal together with this application for a stay.
3. I took the liberty last night of contacting the Honorable Speaker of the Legislative Assembly to ascertain Parliament’s intention in relation to Dr Tu’i’onetoa on this matter. The Speaker advised that “Parliament will resume tomorrow 10:00am to deliberate on the government budget and if the member does not have a stay order by then he will be unseated in accordance to the Electoral Act”.
4. The principles relevant to a stay application of this kind have been recently discussed in four similar applications arising from judgments on petitions challenging certain of the 2021 election results. In each of those applications, stays have been granted, including another election petition against the Appellant here by Kelekolio Kiu in CV 75 of 2021. The most detailed examination of those principles and the application of them may be found in Moeaki v Tapueluelu (AC 9 of 2022, 20 May 2022).
5. Suffice to say, that for the instant application, I am concerned to consider whether the appeal discloses some prospect of success and where lies the balance of convenience.
6. In relation to the first issue, there is a single ground of appeal relied upon, namely, that the trial Judge erred in concluding that under s. 35 of the Electoral Act the answer given by the Respondent that the water tanks were donated by the Chinese Embassy were for the purpose of bribery. The particulars to that ground then set out certain references, or perceived references, to the evidence below and that referred to in the ex-tempore judgment. I agree with Mr Corbett that that ground, as it is explained in the Notice of Appeal, does not appear to have strong prospects of success. It appears to proceed upon a misapprehension as to the evidence below in relation to that particular finding. Nonetheless, like Webster J in Vaikona v Fuko (No. 3) [1990] Tonga LR 114, to which Mr Corbett referred in his written submissions, I too am reluctant to express any further views on the prospects of success of an appeal against my own decision. For the purposes of this application. I therefore treat that factor as neutral.
7. Of greater significance is the balance of convenience and any exceptional circumstances. In determining where the balance lies, the Court must consider the competing consequences to the respective parties to the appeal and any other relevant interests in either refusing or granting this stay.
8. As explained in the previous decisions, here Mr Lanumata, the losing candidate from the general election for Tongatapu 10 will not suffer any prejudice if a stay is granted other than his opportunity to participate in any by-election should it come to pass upon the appeal being unsuccessful being deferred for a time. Conversely, if a stay is not granted and Dr Dr Tu’i’onetoa is unseated today and if Parliament proceeds with a by-election prior to the hearing and determination of the appeal, and if that appeal is ultimately successful, then in accordance with the principles discussed by Paulsen LCJ in Lord Lasike v Kingdom of Tonga [2017] TOSC 3, he will not be able to be restored to his former position as a member of the Legislative Assembly; in other words, he cannot be re-seated.
9. True it is, as Mr Corbett submitted, that at the moment, the Court does not know whether, if upon any unseating of Dr Tu’i’onetoa, a by-election will be conducted prior to the hearing and determination of the appeal. At present, a special session of the Court of Appeal has been proposed by the last week of July this year. I have no evidence before me as to the intention of the Speaker in conjunction with the Electoral Commission under s. 6 of the Legislative Assembly Act as to when any by-election could be held and completed. The ramifications if a stay is not granted are otherwise quite certain, save for timing, which is presently uncertain.
10. Nonetheless, and for the same reasons explained in the previous rulings in the last week or so, I consider that the course which carries the lower risk of injustice is to grant the stay.
11. Accordingly, I order that the judgment in Supreme Court proceedings CV 73 of 2021, dated 27 May 2022, and any enforcement or execution thereof, be stayed pending the hearing and determination of the appeal in this proceeding.
12. The costs of the application are costs in the appeal.
    

NUKU’ALOFA	M. H. Whitten QC LCJ
2 June 2022	PRESIDENT