Defunct Gov't newspaper restored to Registry in court action [1]
Monday, August 10, 2020 - 19:05. Updated on Tuesday, August 11, 2020 - 10:37.
The Chief Justice has ordered that the defunct Tonga Weekly Newspaper Ltd. be restored to the Register of Companies, in the latest twist of a defamation suit brought against the government-owned newspaper by Mele 'Amanaki in 2014.
'Amanaki filed an application to the courts to restore the Tonga Weekly Newspaper Ltd. to the Register of Companies, with the respondents namely the Government of Tonga and the Registrar of Companies.
Lord Chief Justice Whitten in a judgment on August 3 granted her application.
This means that she may proceed with her defamation action. 'Amanaki, a former parliamentary candidate, is currently the Secretary General of the Public Service Association.
Defamation claim
On March 29, 2019 'Amanaki started proceedings CV9 of 2019 against the Government of Tonga, the company, Faka'osi Maama (editor of the newspaper), and William Clive Edwards (then a director of the company) for damages for defamation arising out of articles published by the newspaper on March 20, April 11 and May 9, 2014.
On December 10, 2019 the Chief Justice granted Government's application to strike out the claim against it and reserved leave to the plaintiff to replead any claim against the Government by January 10, 2020. No pleading was filed.
During the course of the strike out application, it was revealed that the company was registered on June 1, 2012; was 100% Government-owned and had been removed from the Tonga register of companies and deregistered.
Under s.19 of the Companies Act a company continues in existence until it is removed from the Tongan register.
He said it was then necessary to stay the proceeding pending the hearing and determination of any application by 'Amanaki to restore the company to the register in order to determine whether she could proceed against the company in the defamation action.
On January 17, 2020, 'Amanaki filed this application seeking an order for the company to be restored to the register.
Proceedings
The Chief Justice said on February 27, 2020 the Solicitor General, Mr Sisifa, who appeared on behalf of the Government filed submissions in opposition to the application. This was supported by an affidavit by the Registrar of Companies, Distaquaine Tu'ihalamaka (the Registrar) sworn on February 26, 2020.
The Registrar said that the company only filed one annual return in July 2014 for the year 2013.
On May 1, 2015 the company was removed from the register for failing to file annual returns pursuant to the Act.
A company which fails to file annual returns shall be removed from the register but may be reinstated upon payment of the prescribed fee.
However, the Business Registries Office online portal shows the company's status history as having been removed on May 1, 2016.
The company's status remained as 'removed from that date until May 1, 2019 when it was deregistered.
The Solicitor General's written submissions included, that 'Amanaki did not have any undischarged claims against the company at the time it was removed from the register. He also submitted that she had not initiated any legal proceedings against the company during its existence; there were proper grounds for the removal of the company from the register; the company was not in receivership, liquidation or both as at the date it was removed, and that the company no longer had any assets, officers or employees and would not be able to fulfil its obligations under the Act, among other submissions.
Claim
In April this year, 'Amanaki filed a memorandum supported by one of her affidavits siubmitted that at the time the company was removed on 1 May 2015, she had an undischarged claim against it; on April1,2014, she informed her employer (Executive Baord of the Public Service Association) of her intention to sue to company for defamation, among others.
The Chief Justice said 'Amanaki relied on the grounds in s.338(1)(a) for restoration and claimed that at the time the company was removed from the register: it was a party to her case.
He was satisfied that as at the date of its removal from the register, 'Amanaki was and is a person who had and has an undischarged claim against the company.
In regards to other submissions by the Solicitor General, the Chief Justice said at the date of removal, the company was not in liquidation is not a ground for refusing restoration on other grounds such as Amanaki having an undischarged claim against the company.
“If anything, and without evidence to the contrary, the fact that the company was not in liquidation at the date it was removed from the register, may suggest it held assets and was otherwise able to meet its debts and other financial obligations,” he said.
He rejected the submission that the company had no officers or employees and would not be able to fulfil its obligation sunder the Act, “because there is no evidence that the company's former directors are not willing to resume their role or responsibilities in accordance with the Act.” he said.
In addition, given that the company had ceased its newspaper operation approximately five years ago, there was no evidence as to what obligationsil would be required, save for lodging annual returns and possibly defending 'Amanaki's claim.
“Thirdly, the Court may give such directions or make such orders as may be necessary for the purpose of placing the company and any other persons as nearly as possible in the same position as if the company had no been removed from the Tongan register.
“That will include its former directors in the restored company to have continued in existence as if it had not been removed from the register. Restorative orders will have the effect that the company's directors have continued as its office holders,” said the Chief Justice.
'Amanaki brought the application as best she could without apparent legal assistance.
"Arguably, the Government, as the company's former shareholder, has an interest in the outcome of the application. However, rather than seek to be dismissed from the application pursuant to Order 9 rule2 (a) of the Supreme Court Rules, for some reason, known only to itself, the Government decided to actively engage with and oppose the application right through to the last hearing."
The Chief Justice then ordered for the company to be restored to the Tongan register and directed that the company and its directors must comply with its obligations to file all outstanding annual returns under the Companies Act and pay all relevant fees and penalties.
See also:
8 February 2015: Govt newpaper stalls during take-over [2]
25 April 2012: New government newspaper to launch next month [3]