A lawsuit filed by Tongan MP Sione Taione against the Tongan government, accusing it of unlawfully making payments to three nobles, was rejected by the Supreme Court on Friday 22 August.

The Plaintiff, a People's Representative in the Tonga Legislative Assembly, was seeking a declaration, claiming that the Government had made unlawful payments to three nobles in 2011 and 2012.

Two substantial affidavits were filed on behalf of the Crown in August 2013 by the Chief Economist and Head of the Budget Division, Lusitania Latu Eke, and the Acting Head of the Treasury Department, ‘Ana Lemani.

The payments in question were:

1.    A payment of $2 Million Pa’anga to Lord Kalaniuvalu on 30 June 2011.

2.    A payment of $119,500 Pa’anga to Prince Tungi on 16 June 2011.

3.    A payment of $1 Million Pa’anga to the late Prince Tu’ipelehake on 10 February 2012.

The payments were the result of Cabinet decisions made on 23 March 2011 and 12 January 2012, made in relation to the renewal and reorganisation of lease arrangements at Tonga’s Airports including Fua‘amotu International Airport.

The Plaintiff claimed the payments unlawful because they were not approved by the Legislative Assembly as required by Clause 19 of the Constitution. Clause 19 states that no money can be paid out of the Treasury without “…prior vote of the Legislative Assembly…”

He further submitted that the payments were a breach of the Land Act and with Section 9 (1) of the Public Finance Management Act 2002.

Judgement

In a Supreme Court judgement of on 18 August, the Chief Justice Hon. Michael Dishington Scott rejected the Plaintiff’s argument.

In relation to Clause 19, the Chief Justice stated that adjustment provisions in Section 12 allowed the payments to be made without prior approval because they were for reasonably necessary purposes.

 “In my opinion the adjustment provisions of section 12 lawfully allow payment for reasonably necessary purposes not specifically identified and beforehand approved by Parliament.”

“Although read literally, Clause 19 seems to disallow expenditure which has not been specifically authorized by Act of Parliament, save only in the emergencies, I am satisfied that it should not be construed.”

In relation to the first ground of objection to these payments that they were in breach of the Land Act, the Chief Justice stated that it was not arguable in this court.

Other submissions by the Plaintiff were rejected because of insufficient evidence.

The defendants (Lord Tu'ivakano and 11 others) and the Government of the Kingdom of Tonga were represented by 'Aminiasi Kefu SC (Ag. Attorney General). He also submitted that as interested parties, the estate holders should have been either joined as parties or served with the papers as interested parties and that the Defendant should have been "the Kingdom of Tonga" rather than the named Defendants some of whom are no longer members of Cabinet and against several of whom there was no evidence of actual participation in the decisions impuged.

The Chief Justice agreed with Mr Kefu's submissions but said he did not think that  it had resulted in any prejudice to those who should have been affected.