Attorney-General v Tapueluelu [2002] TOSC 8; C 102 & 103 2002 (27 February 2002)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

No.C.102/2002
No.C.103/2002
No.C.102/2002

BETWEEN:

THE ATTORNEY GENERAL
Plaintiff

AND:

SEMISI P. I. TAPUELUELU
Defendant

NO.C.103/2002

BETWEEN:

THE ATTORNEY GENERAL

AND:

KELEPI PIUKALA
Defendant

BEFORE THE HON CHIEF JUSTICE WARD

Counsel: Solicitor General for the Attorney General
Mr Tu'utafaiva for the defendants

Date of Hearing: 25 February 2002
Date of Judgment: 27 February 2002

JUDGMENT

The defendants in these cases have been nominated as candidates for the general election this year. The Attorney General seeks a declaration in each case that their candidacy is invalid because it could lead to a breach of the Constitution by failing to comply with the provisions of clause 65. It is alleged that each defendant has an order of a court against him for payment of a sum of money and those sums were outstanding on the date of nomination. Similar issues are involved in both cases and counsel have agreed they should be heard together.

On 17 December 2001, the Prime Minister issued writs of election under section 7 of the Electoral Act 1989 for a general election of representatives of the People to be held on 7 March 2002. The Supervisor of Elections fixed 10 January 2002 as the nomination day and, on that day, properly supported nomination papers were received and deposits paid for each of the defendants. There is no challenge to the propriety of those nominations. This case concerns a possible conflict with the saving to clause 65 of the Constitution. That clause provides:

"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."

After the close of nominations, the Supervisor of Elections received information that there were sums of money outstanding against each of the defendants as a result of judgments in the Supreme Court. He has no power to reject a nomination that is apparently valid and so he has reported them to the Attorney General who seeks a ruling from this court. Each defendant denies that the sum in his case would make his election contravene the terms of clause 65.

In the case of Mr Tapueluelu, there is no dispute that he was ordered to pay costs of $150.00 for an appeal in case number Cr App 11/00 and they had not been paid on the 10 January 2002. They have since been paid. He also does not dispute that he was ordered to pay costs of $2,570.00 in civil action number C176/01 and they have also not been paid.

He told the court that he did not know of these costs orders when he signed the declaration on the nomination form to the effect that there was no order of a court for payment of a sum of money that was outstanding on that day. As far as the $150.00 costs order is concerned he was totally unaware of it as he did not attend court for the appeal. In the other case, he saw the written judgment which concluded with the words; "The defendants are entitled to their costs to be agreed or taxed". He assumed that he would hear when they were agreed. In fact they were taxed and a certificate of taxation issued on 24 July 2001. In both cases, his counsel was Mr Tu'utafaiva who frankly admits that he failed to advise the defendant of either costs order.

Mr Piukala was sued by the Bank of Tonga in September 1998 for a sum of $10,056.41 and interest at 12.5% from August 1998 and costs. He counterclaimed for a total of $30,000.00 damages for mismanagement of his account by the bank and breach of confidentiality. On 24 November 1998 Finnigan J entered summary judgment on the original claim and adjourned the hearing of the counterclaim until the pleadings had been completed. That order was appealed but the appeal was abandoned. The counterclaim was then listed for trial in May 2000 and was struck out by me for want of prosecution by Mr Piukala. My order was successfully appealed and the counterclaim was listed before Ford J for hearing. In its judgment, the Court of Appeal stated:

"For the avoidance of doubt...we state expressly that there is now no obstacle preventing the Bank of Tonga from proceeding forthwith with action to enforce its judgment against the appellant."

The original judgment debt was therefore payable from that date.

Subsequently, when the case came before Ford J for trial of the counterclaim, there was a meeting between counsel, the defendant and the defendant's son after which the Judge was advised there had been a settlement. As a result he made the following order on 12 October 2001:

"Having heard counsel, Ms Tapueluelu for the plaintiff and Mr Tu'utafaiva for the defendant, the parties have reached a settlement in respect of the outstanding counterclaim.

It is ordered that a Memorandum of Settlement is to be filed as soon as possible and a consent judgment will then be issued."

Mr Piukala and his lawyer, Mr Tu'utafaiva, gave evidence to this court that the terms of the settlement were that the defendant would withdraw his counterclaim and the bank would accept a sum of $1,000.00 in settlement of the judgment debt and an additional $5,000.00 for all the costs incurred. It was also envisaged that Mr Piukala's son would make arrangements to pay the outstanding sums. Their evidence is that the reference in the order of 12 October 2001 for settlement of the counterclaim was inaccurate because the settlement reached was for the whole action. Unfortunately no memorandum of settlement was filed and so there has been no consent judgment but I accept that the settlement may have been as described by the witnesses. As the trial was of the counterclaim only, the learned judge would have had no reason to refer to anything else.

There is also evidence from the ANZ bank that, in February 2002, Mr Piukala's son and daughter in law were awaiting a decision to try and take over Mr Piukala's debt with the Bank of Tonga. However it is clear that no part of the sum of $15,000.00 has been paid.

Three grounds of defence were pleaded in each case, namely that the plaintiff has no locus standi, that no cause of action is revealed in the claim and that the defendants' nominations were not and are not in breach of any rule of law or statute.

Mr Tu'utafaiva only pursues the third ground.

Counsel submits that the reference to nomination day in clause 65 applies only to orders for payment by instalments. In Vaikona v Fuko (No 2) [1990] Tonga LR 68 Webster J had ruled on the same submission, as counsel acknowledged, but he suggested that finding was incorrect and urged this court to reach a different conclusion. I accept this court is not bound by such a ruling but I can find no reason for differing from Webster J's conclusion. In any event, the Vaikona case was appealed and is reported as Fuko v Vaikona (CA) Tonga LR [1990] 148. I consider it is clear the court agreed with the conclusion at first instance. In that case, the sum of money outstanding was paid between the date of nomination and polling day. In upholding Webster J the court stated that the appellant "fell fairly and squarely within" the terms of the clause. I am bound by that interpretation.

Mr Tu'utafaiva also suggests that the use of the word "chosen' in clause 65 referring as it does to the actual election means that a man may still be elected if he has paid off his debt by the date he is chosen in the polls. I cannot accept that argument. The terms of the clause are clear. It makes the date of nomination the critical time to ascertain the question of outstanding court orders. Those words as Mrs Taumoepeau correctly points out must be read in their ordinary meaning and I can see no other way in which they can be read.

If one purpose of this clause is to prevent candidates who are in debt under court orders from being elected it may be, as Mr Tu'utafaiva points out, that it will not always succeed. Thus a man who is in breach of clause 65 on nomination day but pays off all his debts before polling day would not be able to stand whereas a man who was clear of court orders on nomination day could have very substantial sums outstanding by polling day and still be permitted to stand.

I accept that may be the case but the court has to take the law as it stands. If there is a need for change, that is for the Legislature. However, the requirement is clear for any intending candidate and it is up to him to ensure he is not in breach. Again as Mrs Taumoepeau points out, any person who wishes to stand for election to such an important position should be prepared to check the law and his position under it.

Having said that, in Mr Tapueluelu's case I accept that he did not know of the two costs orders and I am satisfied that, when he signed the declaration, he did so in the honest belief that what he stated was true. His is a most unfortunate case. Through little fault of his own, he is unable to stand in the election. But that is the effect of clause 65. There is no provision about the state of knowledge of the candidate. The test is whether there is a sum of money outstanding from a court order, not whether he knows of it. There is no dispute that these were valid orders and served on his counsel in the normal way.

The plaintiff suggests any prudent candidate would take the elementary precaution of asking the court registry and Mr Tapueluelu did not even though he knew of the cases. It is clear on the evidence, as Mr Tu'utafaiva points out, that when the Registrar wrote to the Supervisor of Elections on 29 January 2002 she was only aware of the order for $150.00. The other order only came to light later so, even if Mr Tapueluelu had tried to clarify the point with the court, he would have only heard of the smaller costs order.

I cannot accept that would have been the result. Had he enquired, he would, of course, have known the case references so they would have been easily traced.

There is no dispute that both sums of money were ordered by a court for payment and were outstanding on the date he submitted his nomination papers and he is therefore unable to stand.

I make the declaration sought and order that Mr Tapueluelu's name shall be removed from the Roll of Candidates for the 2002 general election. He must pay the plaintiff's costs.

In the case of Mr Piukala, Mr Tu'utafaiva submits that, as there was a settlement, the sum was not due payable and so it was not outstanding.

I do not accept there is any force in that argument. On the defendant's own evidence, the agreement was that the figure of $15,000.00 would be accepted by the Bank in full settlement of his judgment debt and costs. That would appear to have been a reduction from the total of $10,056.41 with the addition of three years interest at 12.5% ordered by Finnigan J but, whatever Mr Piukala's hopes that his debt would be paid by someone else, it was not and it is still payable and was outstanding at the time he submitted his nomination papers.

I make the declaration sought and order in his case also that his name be removed from the Roll of Candidates for the 2002 general election. He must also pay the plaintiff's costs.

NUKU'ALOFA: 27^th February, 2002.

CHIEF JUSTICE