An appeal by the Friendly Islands Satellite Communications Ltd (TongaSat) to present new evidence was dismissed by Tonga’s Court of Appeal on April 17 in Nuku’alofa. 

This fresh evidence cited was in regards to affidavits from Lord Matoto, Sunia Fili, ‘Aisake Eke and ‘Aholotu Palu.

However, the Appeal Court ruled TongaSat knew of this evidence and it was available for them to call those witnesses in trial.

This was in regards to a seven-day trial held before Lord Chief Justice O.G. Paulsen, who in his judgements delivered in August and September 2018 declared the multi-million Chinese aid fund grants paid to Tongsat in 2008 and 2011 were unlawful.

This was because the funds received by the Kingdom of Tonga from People's Republic of China (PRC) was a grant and accordingly public money, under the Public finance Management Act.

In this case, the Appeal Court stated that the further evidence sought from Lord Matoto who was Minister for Finance in September 2008 and was appointed on behalf of the Kingdom to go to Beijing and sign the agreement with China that provided for the two payments in question, which occurred on July 14 of that year. He was not involved in the receipt or disbursement of the second payment and he had not been asked by the legal representatives for the Kingdom to give evidence at the trial.

“Clearly, Tongsat (appellant) executives that were involved in the negotiations for the agreement with PRC were aware of the involvements of Lord Matoto.

The other, Sunia Fili was the Minister for Finance at the time of the second payment. He had discussions with Tongasat representatives including Anna ‘Ilaiu, a Director and Mr Panuve, a Managing Director.

He arranged for the opening a specifically designated account with the Reserve Bank to receive the second payment and copied Tongasat with the correspondence. He later gave instructions to the Bank for the disbursement of funds. Clearly, his involvement was known to the relevant Tongasat executives, stated the Appeal Court.

While, ‘Aisake Eke's evidence was that as Secretary of Finance at the time, the first payment reporting to the then Minister Lord Matoto. He was aware at the time of the agreement with PRC and the receipt and disbursement of the funds from this first payment. 

Eke had been approached by the Acting Attorney General who was to appear for the Kingdom in the trial to give evidence. He told the Acting Attorney General that he was too busy but said in his affidavit that if the Acting Attorney had repeated his request he would have agreed. 

In the result, the Kingdom did not call him. Eke does not depose any direct contact with the appellant’s representatives but they would have known his potential role as a witness, said the Court.

The last affidavit was from ‘Aholotu Palu who was Head of the Budget Division at the Ministry of Finance in 2011 when the second payment was received. He was aware of the pending payment and its intended disbursement to TongaSat.

Palu had disposed discussions with Anna ‘Ilaiu and Semisi Panuve representing TongaSat.

“The appellant also complains about the inadequate discovery of documents by the Kingdom, but it made no attempt to enforce further discovery before the trial or to obtain further documents by an appropriate subpoena at the trial.”

Dismissal

The Appeal Court said Tongasat's difficulties center on the first requirement. The proposed evidence was not discovered for the first time after the trial.

"The role and involvement of the new witnesses was known to the appellant's senior executives in 2008 and 2011, the witnesses were living in Tonga and available to be interviewed here and it was known that the Kingdom did not intend to call them at the trial."

In addition, there was no practical, legal or ethical impediment to them being approached by TongaSat legal representatives to give evidence in the trial, stated the Appeal Court.

"There is no property in a witness, even one who may be thought to be in the camp of another a party, least of all in such a witness who is not to be called by the party which might have been expected to call him or her."

The new evidence could have been obtained by reasonable diligence for the trial.

Ruling

The Appeal Court then ruled that the notice of motion of October 16, 2018 for leave to adduce fresh evidence is dismissed with costs, and the money in Court as security for the second respondent’s ('Akilisi Pohiva) costs may be paid out to the solicitor for the second respondent.

The appeal was by TongaSat v the respondents, Public Service Association Incorporated, ‘Akilisi Pohiva and Kingdom of Tonga.

Meanwhile, it is understood that TongaSat's substantive appeal against the Lord Chief Justice’s decision that the multi-million dollar payment to them was unlawful will be called the second sitting of the Appeal Court in September this year, if pursued.