Tonga Development Bank v Tohifolau [2024] TOSC 46; CV 25 of 2024 (21 June 2024)

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

CV 25/2024

[1] TONGA DEVELOPMENT BANK
- First Plaintiff/Applicant

-v-

[1] POLICE OFFICER KALISI KAFO’ATU TOHIFOLAU
- First Respondent
[2] KINGDOM OF TONGA
- Second Defendant

ORDERS MADE BY: COOPER J
DATE OF ORDER: 21 JUNE 2024

THE COURT ORDERS THAT:

1. The application for an ex parte interim injunction is refused. If this application is to be pursued it must be made inter partes.
   

REASONS

1. On 31 May 2024 the Plaintiffs filed an ex parte application for an injunction.
2. The application relates to material seized in a police search, authorised under a warrant, at the premises of the Tonga Development Bank (TDB).
3. The application is for interim injunctive orders for:
   1. All materials seized wrongfully by the First Defendant and Police Officers of Ministry of Police and listed hereunder be returned to the Plaintiff forthwith until final judgement in this case.
   2. The First Defendant and the Ministry of Police to be prohibited from using said material in any way or form pending determination of these proceedings.
   3. The Defendants to issue a public apology to the bank.
   4. Any other orders this Honourable Court may deem just.
4. Accompanying the application is the affidavit of Ms. Lata’anga Kava, Acting CEO of TDB. Albeit the month of the swearing of that document has been omitted, it plainly should read 30 May 2024.
5. Accompanying that affidavit are annexes “A” to “G”.
6. Annex “A” is a copy of the search warrant.
7. Annex “B” the list of material seized.
8. I take it that the material seized, as set out in annex “B”, is that, which the Applicants seek to have returned, though this has not been spelt out.
9. The affidavit contains the undertaking to pay damages and states the matter is urgent.
10. On Monday 17 June 2024, there was an ex parte hearing on this application.
11. One of the points the Court wished to clarify was what the urgency was said to be. There were no reasons stated in the affidavit to support that claim.
12. Counsel for the Applicants set out three grounds why the application was urgent:
    1. The wish for the material to be returned.
    2. The alleged impropriety of the seizure.
    3. That the seizure went beyond the scope of the warrant by taking material “...belonging to Project Polata’ane”.
13. Order 22 Rule 1 (4) Supreme Court Rules

In cases of urgency or where the application relates to a Mareva injunction, application may be made ex parte, and the Court may, upon the applicant giving an undertaking in damages, make such order as it thinks just.

Discussion

14. Whereas the application has claimed the application is urgent, this has not been demonstrated. There has been nothing to support the contention any of the three grounds submitted of themselves create a state of urgency.
15. To put it another way, there is no material or argument that identifies any consequences to the three grounds so as to make them urgent.
16. Where there might be said to have some claim of urgency in the affidavit evidence, reflected in the proposed Statement of Claim at paragraph 16, is the suggestion that a press release issued by the Tonga Police following the search has caused concern amongst the public and that has potential to be damaging to the reputation of TDB.
17. That press release is not the subject of any of the injunctive orders sought.

Conclusion

18. This application, if it to be pursued, must be made inter partes.
    

SUPREME COURT	21 JUNE 2024
NUKU’A LOFA	COOPER J