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Public Service Association Incorporated v Kingdom of Tonga [2015] TOCA 19; AC9 of 2015 (16 September 2015)

IN THE COURT OF APPEAL OF TONGA

CIVIL JURISDICTION AC 9 of 2015

NUKU'ALOFA REGISTRY [CV 48 of 2014]

BETWEEN:

1. PUBLIC SERVICE ASSOCIATION INCORPORATED
2. SAMIUELA 'AKILISI POHIVA
Appellants

AND:

1. KINGDOM OF TONGA
2. FRIENDLY ISLANDS SATELLITE COMMUNICATIONS LIMITED (TRADING AS TONGASAT)
Respondents

Coram : Moore J
Blanchard J
Hansen J
Tupou J

Counsel : Dr. R. Harrison QC SC for the Appellants
Mr. S. Sisifa SG for the First Respondent
Mr.S. Stanton SC & Mr. W. Edwards for the Second Respondent

Date of Hearing : 14 September 2015
Date of Judgment : 16 September 2015

JUDGMENT OF THE COURT

Introduction
[1] This is an application for leave to appeal against an order made by Scott J on 19 March 2015 in the Supreme Court requiring the plaintiffs/appellants Public Service Association Inc (Tonga PSA) and Mr. 'Akilisi Pohiva (whom we will jointly call "the appellants") to pay to the Registrar sums of $20,000 each by way of security for costs. The effect of the order is to stay the appellants' proceeding against the Kingdom of Tonga and Friendly Islands Satellite Communications Ltd (trading as Tongasat) (whom we will jointly call "the respondents") until the security is provided.

[2] In view of the importance of the matter we allowed counsel to proceed to argue the merits of the appeal reserving the question of leave to appeal.

[3] The proceeding by the appellants against the respondents was commenced on 8 July 2014. In their statement of claim the appellants have impugned a payment of US$25,450,000 said to have been made by the Government of Tonga to or for the benefit of Tongasat in or about June 2011 after the Government had received an aid grant in that amount from the Government of the People's Republic of China (PRC).It is pleaded that the payment of the PRC aid grant funds to or for the benefit of Tongasat was contrary to law and/or without legal authority and accordingly beyond the powers of those making or authorising it and/or was invalid. The appellants seek a declaration that accordingly the funds remain the property of the Government (or Kingdom) of Tonga. An order for repayment, or alternatively damages, payable to the Government (or Kingdom) of Tonga is also sought.