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Tonga Development Bank v Motulalo [2025] TOCA 8; AC 15 of 2024 (16 May 2025)

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

AC 15 of 2024
[CV 53 of 2023]

BETWEEN
1. TONGA DEVELOPMENT BANK
2. ‘EMELINE TUITA
Appellants

AND
TEVITA MOTULALO
Respondent

Hearing:
7 May 2025

Court:
Randerson J, Harrison J and Morrison J

Counsel:
Fatai Vaihu for the Appellants
William Edwards for the Respondent

Judgment:
16 May 2025

JUDGMENT OF THE COURT

Background

[1] The appellants are engaged in dealings involving Cost Low Company Limited and Charlotte Tu’i’ile’ila. The respondent is a journalist who, through his publication company, Independent News, has published various articles referring to those dealings and in particular, the conduct of the appellants.
[2] On 8 November 2023, by CV 53 of 2023, the appellants issued proceedings against the respondent, contending that what he had published was defamatory of them. They sought an injunction to prevent further publication.
[3] On 12 December 2023, the application for an injunction came before the Court. By then the respondent had applied to strike out the statement of claim, but it had not been served.
[4] Both applications were dealt with for the purpose of making directions. The order made that day included:

“6. Mr Edwards undertook that his client would refrain from publishing any material relating to the subject matter of the proceedings between the Tonga Development Bank v Costlow and Ms Tu’i’ile’ila ...

7. Upon discussions, I make the following directions:

1. The defendant shall provide a written undertaking that he will refrain from publishing any material relevant to the current proceedings between the Tonga development bank v. Costlow and Ms Tu’i’ile’ila.”

[5] On 12 December 2023 the respondent gave a written undertaking to the Court in these terms:^[1]

“Independent News and/or I will not publish any further news article nor any further information concerning the Tonga Development Bank and ‘Emeline Tuita, which information concerns or is referred to in the Cost Law Company limited and/or Charlotte Tu’i’ile’ila proceedings, including land proceedings LA 19 of 2023 and the civil proceedings CV 37 of 2023. Further I provide the undertaking that no information that has been communicated between the Tonga Development Bank and ‘Emeline Tuita with Cost Law Company Limited and/or Charlotte Tu’i’ile’ila will be published or communicated to any third party by Independent news or I, regardless of whether the information is raised in the land proceedings LA 19 of 2023 or the civil proceedings CV 37 of 2023.

In providing the Undertaking I, Tevita Motulalo, ... do hereby state that upon receiving the ex-parte application for injunction through to today’s date, have refrained from making any publication or discussing any matter raised or concerning the land proceedings LA 19 of 2023 and the civil proceedings CV 37 of 2023. I further state that we have not published anything concerning the Tonga Development Bank and/or Emeline Tuita since 8 November 2023, nor do we intend on doing so until the issue of the injunction application and strike out application are resolved.”

[6] In March 2024, the appellants commenced proceedings for an order of committal for contempt against the respondent, in respect of publications by him on 17 February 2024. Those proceedings were set down for hearing on 26 June 2024.
[7] On 31 May 2024, the appellants commenced a second proceeding, seeking an order of committal for contempt against the respondent. A summons to show cause was issued on 26 March 2024. It compelled the respondent’s attendance at Court on 8 May 2024.
[8] On [date] the respondent published certain text and images on Facebook. The post contained:

• (a) a photograph of Supreme Court House No. 3;
• (b) beside that, an image of the summons to show cause; and
• (c) above them, three paragraphs of words in the Tongan language.

[9] The image of the summons displayed the names of the appellants and the respondent and the heading of the proceedings.
[10] Translated the text said:

“IF ONLY HE/SHE KNEW

I have frequented this place as a member of the public and as a journalist to observe that the administration of justice is well run. We are proud of that.

But this morning I come as a Defendant ... and if I don’t turn up, I will be imprisoned for disobedience.”

The findings in the Court below

[11] The application for an order for committal for contempt came before Lord Acting Chief Justice Tupou on 18 June 2024. Her Lordship dismissed the application on the basis that:

“4. The relevant undertaking was written and signed by the Defendant on 12 December, 2023. In it, the Defendant undertook that;

“.... Independent News and/or I will not publish any further news article nor any further information concerning the Tonga Development Bank and 'Emeline Tuita, which information concerns or is referred to in the Cost Low Company limited and/or Charlotte Tu'i'ile'ila proceedings, including land proceedings LA 19 of 2023 and the civil proceedings CV 37 of 2023. Further I provide the undertaking that no information that has been communicated between the Tonga Development Bank and Emeline Tuita with Cost Low Company Limited and/or Charlotte Tu'i'ile'ila will be published or communicated to any third party by Independent news or I, regardless of whether the information is raised in the land proceedings LA 19 of 2023 or the civil proceedings CV 37 of 2023 ...”

...

7. Relying on the content of the said Facebook post, the Acting CEO of the Plaintiff bank deposed that the content of the Defendant's publication was a direct breach of his undertaking to the court in its “particular reference in the article to the present proceedings and Cost Low....”
8. I do not agree. There is nothing in the pictures or the statements made on the Defendants material Facebook post that relates or reference the proceedings LA 19 of 2023 or CV 37 of 2023 between the Plaintiffs and Cost Low.
9. The post relates solely to the existing application for his committal and the summons he received to show cause.”

Grounds of appeal

[12] The appellants contend that dismissal of the application was in error because:

• (a) the Facebook post breached the undertaking given on 12 December 2023;
• (b) the ruling was limited to a consideration of breach of parts 1 and 2 of the undertaking, and not part 4;^[2] and
• (c) the Facebook post breached the undertaking in part 4.

Consideration

[13] Any analysis of the undertaking shows there to be four relevant parts.
[14] Part 1 is the first sentence:

“I, ... provide the undertaking that Independent News and/or I will not publish and further news article nor any further information concerning the Tonga Development Bank and ‘Emeline Tuita, which information concerns or is referred to in the Cost Low Company Limited and/or Charlotte Tu’i’ile’ila proceedings, including land proceedings LA 19/2023 and the civil proceedings CV 37 of 2023.”

[15] Part 2 is the second sentence:

“Further, I provide the undertaking that no information that has been communicated between the Tonga Development Bank and Emeline Tuita with Cost Low Company Limited and/or Charlotte Tu’i’ile’ila will be published or communicated to any third party by Independent News or I, regardless of whether the information is raised in the land proceedings LA 19 of 2023 of the civil proceedings CV 37 of 2023.”

[16] Part 3 is the third sentence:

“In providing the Undertaking I ... do hereby state that upon receiving the ex parte application for injunction through today’s date, have refrained from making any publication or discussing any matter raised or concerning the land proceedings LA 19 of 2023 and the civil proceedings CV 37 of 2023.”

[17] Part 4 is the fourth sentence:^[3]

“I further state that we have not published anything concerning the Tonga Development Bank and/or Emeline Tuita since 8 November 2023 nor do we intend on doing so until the issue of the injunction application and strike out application are resolved.”

[18] There are several matters that can be drawn form the form of the undertaking and its sequence of sentences.
[19] First, the phrase “I provide the undertaking that” appear only in the first two sentences. Each of them contains an undertaking not to do something. The same cannot be said of the third and fourth sentences. The third sentence commences with the phrase “In providing the Undertaking”, but that is plainly a reference to the undertaking in the first and second sentences. Otherwise the third and fourth sentences simply recite a statement of fact, namely:

• (a) third sentence: that the respondent has refrained from making certain publications in the past; and
• (b) fourth sentence: that the respondent has not published anything since 8 November, and does not intend to do so until the injunction application and strike out application are resolved.

[20] Secondly, the third sentence cannot be construed as containing an undertaking susceptible of enforcement in committal proceedings. The statement of fact in it may be true or untrue, but even if untrue that does not convert the words into an undertaking.
[21] Thirdly, the first half of the fourth sentence is in the same category. It is a statement of fact that is not an undertaking. The balance is also a statement of fact, namely that as at 12 December 2023 the respondent did not intend to publish anything until the finalisation of the injunction and strike out.
[22] Fourthly, the words in the fourth sentence, namely “nor do we intend on doing so”, can be construed as an ongoing promise to the Court, so that if the stated intention was to change the other parties and the Court should be told so that steps could be taken to respond.
[23] However, that focuses attention upon what the content of that promise is. In context, it must refer to the publications identified in the undertakings themselves. That is, publications “concerning the Tonga Development Bank and ‘Emeline Tuita, which information concerns or is referred to in the Cost Low Company Limited and/or Charlotte Tu’i’ile’ila proceedings, including land proceedings LA 19/2023 and the civil proceedings CV 37 of 2023”.
[24] To construe the promise more widely is to make the undertaking so vague as to be unenforceable. For example, it could not be so wide as to stop publication of the Bank’s opening hours, interest rates or annual report. Nor, for example, could it be so wide as to preclude news of Ms Tu’i’ile’ila being involved in an accident, or getting married or divorced.
[25] Fifthly, once the proper construction of the whole “undertaking” is understood, the contention that there was a breach by publication of the summons to show cause, and the general statement about the respondent’s attendance at Court as a defendant, must be rejected. As the learned primary judge said, there is nothing in the pictures or the statements made in the Facebook post that relates to the subject matter of the undertakings which is directed to the publication of information concerning or referred to in the named proceedings. The post relates solely to the application for the respondent’s committal and the summons to show cause.
[26] In our view, the learned primary judge did not fall into error, and the appeal must be dismissed.

Result

1. The appeal is dismissed.

2. The appellants shall pay the respondent’s costs of the appeal to be fixed by the Registrar if not agreed.
   

Randerson J

Harrison J

Morrison J

^[1] Emphasis added.
^[2] Part 4 being that part highlighted in paragraph [5] above.
^[3] Highlighted in paragraph [5] above but repeated here for ease of reference.