Home | Databases | WorldLII | Search | Feedback Court of Appeal of Tonga

Tu'i'onetoa v Pohiva [2001] TOCA 1; CA 05 2001 (7 July 2001)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

Appeal No. CA 5/2001
Case No. 1262/99

BETWEEN:

POHIVA TU'I'ONETOA
Appellant

AND:

'AKILISI POHIVA
Respondent

Coram: Burchett J
Tompkins J
Spender J

Counsel: Lesina Tonga for appellant
Siosifa Tu'utafaiva for respondent

Date of hearing: 0 July 2001
Date of judgment: 7 July 2001

JUDGMENT OF THE COURT
DELIVERED BY TOMPKINS J

[1] The appellant (the plaintiff in the Supreme Court) sued the respondent for defamation. Following a trial before the Chief Justice and a jury, judgment was entered for the respondent, in accordance with the answers the jury gave to the issues. In the course of the trial, the Chief Justice gave a ruling on the defence of qualified privilege. The appellant has appealed against the ruling and the jury's verdict.

Background

[2] At the relevant time and at the time of the trial, the appellant was the Auditor General for the Government of Tonga. The respondent was the editor, owner and publisher of the Kele'a, a newspaper published in the Tongan language. He was also a Member of Parliament.

[3] In the November/December 1998 issue of the Kele'a there was an article concerning a report from the office of the Auditor General which had been submitted to the Speaker of Parliament on 30 September 1990. The report containing a recommendation that monies received by some Members of Parliament should be refunded as they were not entitled to receive them. The article alleged that the report had been later resubmitted with the portion which contained the recommendation to refund money wrongly received, erased and replaced with a different explanation. The article claimed that this alteration had been made by the appellant.

[4] The article concluded with a paragraph which, translated, reads:

"However, it is proper that particular notice should be taken of the dangerous situation the Audit Department is placed because it is not independent and we have today experienced the bad (disastrous) consequence where the auditor has altered the correct result of independent examination carried out and put aside the truth and covered it instead with lies for the purpose of protecting members of the House (Legislative Assembly)."