'Amanaki v Tonga Weekly Newspaper Ltd [2022] TOSC 68; CV 9 of 2019 (11 August 2022)

IN THE SUPREME COURT OF TONGA CIVIL JURISDICTION NUKU’ALOFA REGISTRY CV 9 of 2019
BETWEEN:
MELE TEUSIVA ‘AMANAKI	Plaintiff
-and-
[1] GOVERNMENT OF TONGA [2] TONGA WEEKLY NEWSPAPER LTD [3] FAKA’OSI MAAMA [4] WILLIAM CLIVE EDWARDS	Defendants

Mr Maama’s application for return of his passport

RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: The Plaintiff

Mr Clive Edwards SC for Mr Maama

Date: 11 August 2022

1. On 29 July 2022, judgment was delivered in the proceeding in favour of the plaintiff as against the Tonga Weekly Newspaper and Mr Maama with an order to pay damages jointly and severally of $50,000 plus costs if any.
2. On 5 August 2022, Mr Edwards filed a memorandum on behalf of Mr Faka’osi Maama, the Third Defendant in the proceeding, requesting the return of Mr Maama’s passport to permit him to travel to New Zealand today and return on 25 August 2022. Mr Edwards stated the purpose of Mr Maama’s travel to consist of attending his brother’s 70^th birthday, to make arrangements for the education of his two children in New Zealand and to order goods for the family’s company shop.
3. The application was called on before the court as soon as practicable given Mr Maama’s proposed departure later this afternoon.
4. The application was not supported by any affidavit from Mr Maama. No reason was given for that, nor did Mr Edwards seek to call Mr Maama to give evidence in court.
5. Mr Edwards submitted that the purpose for the original order requiring Mr Maama to surrender his passport has now been satisfied.
6. The original order on 27 May 2022 followed the withdrawal by Mr Maama through his counsel of an application to set aside default judgment which had been entered in 2019. The basis for the application was asserted to have been that Mr Maama was never served with the originating process. That application was opposed by Mrs ‘Amanaki who deposed to having travelled to New Zealand with her then husband where they found Mr Maama and served him after a number of unsuccessful attempts to do so by others.
7. Mr Maama deposed that he had been in Tonga for all of that period and much longer. An order was made on the application of the plaintiff for Mr Maama’s travel history to be released by the Ministry of Immigration. Those records showed that between 2015 and 2019, Mr Maama travelled out of the Kingdom to New Zealand on at least 26 occasions. The withdrawal of the application followed.
8. At the time I expressed concern about the state of the conflicting evidence and that concern was not assuaged by the withdrawal of the application. I did not then refer the papers to the Director of Public Prosecution because the application was withdrawn and there was therefore no need to determine any issues of credit and whether or not perjury may have been committed. I preferred then instead to focus on the then imminent trial of the substantive proceeding which was conducted and concluded as mentioned. An order was made, however, for Mr Maama to surrender his passport until the completion of the trial and delivery of judgment, whereupon further orders would be considered.
9. Today, Mr Edwards submitted that the Court does not have power to continue to hold Mr Maama’s passport and to do so would be a contravention of Clause 1 of the Constitution. I do not agree with that interpretation of Clause 1 of the Constitution. It does not refer to freedom of travel outside the Kingdom. It simply enshrines the protection of the individual liberty of subjects within the Kingdom of Tonga.
10. By contrast ss 5(2) of the Supreme Court Act confers on the Court, subject to any other applicable law to the contrary, all powers that the Court considers necessary or desirable to enable it to give effect to and enforce the judgments and orders of the Court. No other applicable law to the contrary has been cited. The original order which was admittedly unusual and quite exceptional was a necessary reaction to the outcome and the conduct of his application to set aside the default judgment. It was clear then and it remains the case, in my view, that there is a risk that Mr Maama may seek to thwart the processes of the Court which are available to the plaintiff to give effect to and enforce the judgment by leaving Tonga thereby precluding the plaintiff from being able to serve any enforcement process such as a Writ of Distress on Mr Maama personally here in the Kingdom.
11. For that reason, I consider that the Court does retain power to maintain the order requiring the surrender of Mr Maama’s passport in order to avoid any possibility of him attempting to thwart the processes of the court during any enforcement phase.
12. However, at this stage, Mrs ‘Amanaki is not yet sure about when or what enforcement proceedings are to be taken although she indicated an intention at some point to file for a Writ of Distress. If so, that writ would need to be served on Mr Maama.
13. I should also note that I do not consider any of the reasons given for the travel for the next two weeks to be necessary in the sense that they require Mr Maama to leave the country at this time which just so happens to coincide with the judgment having recently being issued. That is to be contrasted, for example, with a case where a person in Mr Maama’s position may be required to travel overseas for urgent medical attention. But that is not the case here.
14. In an endeavour to break the impasse, I asked Mr Edwards whether Mr Maama would be prepared to give an undertaking to the Court that he will return on the 25th of August this year as stated in Mr Edwards’ memorandum. After the matter was stood down for the taking of instructions, Mr Edwards confirmed to the court that Mr Maama undertakes to return to the Kingdom on 25 August as proposed. He also added that Mr Maama had been advised in relation to the consequences of breaching that undertaking including the possibility of contempt proceedings.
15. Mrs Amanaki opposed this application for the simple reasons that, given the history of the matter, she does not believe Mr Maama will abide by his undertaking.
16. Mr Edwards indicated to the court upon instructions that neither of his clients, and specifically Mr Maama in this instance, are prepared to either pay the judgment sum and any amount for costs into court pending any further order nor is Mr Maama able or willing to pay into court any amount for security in respect of his undertaking.
17. If Mrs Amanaki’s fears come to fruition and if any contempt proceedings result, then there is always the possibility that Mr Maama may still find himself within the reach of the law of Tonga whether or not that involves the cooperation of New Zealand (or other) law enforcement authorities through extradition proceedings.
18. Weighing up all those considerations I am satisfied that the undertaking given to the court is a satisfactory security.
19. I order that Mr Maama’s passport be returned to him and that his name be removed from the no-fly list.
20. Mr Edwards is to file a memorandum on 25 August 2022 confirming Mr Maama’s return to Tonga, or otherwise.
21. After that, if there are any other proceedings to be taken during any enforcement phase of this action, they can be considered as they arise.

NUKU’ALOFA	M. H. Whitten QC
11 August 2022	LORD CHIEF JUSTICE