By Linny Folau

An application by the Tonga Development Bank for an “ex parte” injunction seeking return of the materials seized in a police search of its premises in May, was refused by a Supreme Court judge. The applicants claimed that the seizure went beyond the scope of the warrant and included documents “belonging to Project Polata'ane”.

[The Project refers to a scheme to build luxury villas at the Royal estate Polata’ane, on the Nuku'alofa waterfront, under a partnership project [2] between the Tonga Development Bank, the land-owner and a mystery investor. The Bank in February announced that the villas would be opened on 1 July this year.]

Justice Cooper issued an order on 21 June in the application brought by the Tonga Development Bank (first plaintiff/applicant) against Police Officer Kalisi Kafo’atu Tohifolau and the Kingdom of Tonga (respondents), at the Supreme Court in Nuku'alofa.

He ruled that if this matter is to be pursued it must be made ‘inter partes’ meaning with both parties present, since the urgency of the matter claimed was not demonstrated.

Application

On 31 May the plaintiffs filed the ex parte application for the injunction relating to material seized in a police search authorized under a warrant at the bank’s premises.

The application sought interim orders that:

1. All materials seized wrongfully by the first defendant and police officers of the Ministry of Police as listed be returned to the bank until final judgment in this case;
2. The first defendant and the Ministry of Police be prohibited from using the said material in any way or form pending determination of these proceedings;
3. The defendants to issue a public apology to the bank.

The judge stated that accompanying the application was the affidavit of the TDB Acting CEO, Ms. Lata’anga Kava.

“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. The affidavit contains the undertaking to pay damages and states the matter is urgent. The ex parte hearing was held on 17 June hearing on this application.

“However, one of the points the court wished to clarify was what the urgency was said to be. There was no reason stated in the affidavit to support that claim,” he stated.

“Counsel for the applicants set out three grounds, why the application was urgent: the wish for the material to be returned; the alleged impropriety of the seizure; and that the seizure went beyond the scope of the warrant by taking material….‘belonging to Project Polata’ane’.”

The judge stated whereas the application claimed that it was urgent, this had not been demonstrated, and there had been nothing to support the contention any of the three grounds, submitted of themselves, created a state of urgency.

“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.

“Where there might be said to have some claim of urgency in the affidavit evidence, reflected in the proposed Statement of Claim (16), is the suggestion that a press release issued by the Tonga Police following the search has caused concern among the public and that has potential to be damaging to TDB’s reputation.

“That press release is not the subject to the injunctive orders sought.” Justice Cooper then ordered that this application, if it is to be pursued, must be made “inter partes”. Meanwhile, on 24 May Tonga Police, who had conducted a search at the TDB premises, stated that was in response to a complaint regarding an alleged breach of the Banking Act.

See also:

https://matangitonga.to/2024/05/28/police-search-tonga-development-bank-response-complaint [3]

https://matangitonga.to/2024/02/16/big-development-project-mystery-investor [2]

https://matangitonga.to/2024/0½5/luxury-conference-centre-and-villas-planned-polataane-royal-estate [4]