Supreme Court orders Prime Minister to pay Princess and others legal costs

Tonga’s Supreme Court has ordered Prime Minister ‘Akilisi Pohiva to pay Princess Pilolevu, former Prime Minister Lord Tu’ivakano and former Tongan Minister of Law Clive Edwards their legal costs after a lawsuit he launched against them failed.

Hon. Pohiva filed a private criminal prosecutions against the three in the Fasi Magistrate Court on February 12, 2013.

A fourth respondent, Friendly Islands Satellite Communication Ltd, was also named.

Pohiva brought an action charging the respondents with several offences including theft, conspiracy, aiding and abetting and receiving about TOP$18 million of the proceeds of a 2011 Tonga-China Economic and Technical Cooperation Agreement loan from the People’s Republic of China to Tongan government.

Last year the Magistrate’s Court in Nuku’alofa ruled that there was an absence of evidence to show dishonesty and discharged all four of the accused.

Hon. Pohiva, who represented himself in court, appealed the magistrate’s decision.

He claimed  the Magistrate wrongly applied the provisions of the Magistrates’ Court Act as amended by the Magistrates’ Courts (Amendment) Act 2012, in particular by refusing his (Hon. Pohiva’s) request to allow his witnesses to give evidence during the committal proceedings.

Hon. Pohiva’s appeal was quashed by the Supreme Court, but Pohiva asked his New Zealand lawyer, Dr Rodney Harrison, to appeal his case at the Court of Appeal, which was held at Nuku’alofa Supreme Court.

Pohiva was ordered to pay the defendants’ legal costs of $22,000 but he appealed the court order.

In October 20, 2014 he was ordered to pay the money so that he can stand as a candidate for Tonga’s General Election on November 27, 2014.

In his ruling on March 6, Justice Scott said: “I can find no reason not to award the Respondents their costs of this appeal and this application.”

“In view of the seriousness of the charges which were beyond the jurisdiction of the Magistrate’s Court, committal proceedings were held. These proceedings resulted in the discharge of all four Respondents. (i.e Princess Pilolevu, former Prime Minister Lord Tu’ivakano former Tongan Minister of Law Clive Edwards and Friendly Islands Satellite Communication Ltd.

Hon. Pohiva sought to overturn the decision, but his appeal was dismissed in January last year.

In his decision, Justice Scott said he relied on the general rule that costs should not be awarded against the Crown in criminal cases except in exceptional circumstances. He said that because this was an appeal from a private criminal prosecution, he asked for written submissions on the issue.

“Extensive written submissions, with attached authorities, were filed by Mr Stanton on 19 May 2014,” Justice Scott said.

“These were followed by written submissions signed and filed on 28 August by the Appellant (Hon. Pohiva) but the author of which, it transpired at the hearing, was in fact Mr Harrison, who did not appear. Submissions in reply were filed by Mr Stanton on 14 November.

“Mr Harrison submitted that the only statutory power to award costs of an appeal to the Supreme Court is to be found in section 80(1) of the Magistrate’s Court Act and I agree. He then, however, submitted that section 80 had not been enlivened since section 74 of the Act did not make provision for an appeal against an order for discharge following committal proceedings.

“Unfortunately, Mr Harrison overlooked the fact that the section was amended in 2012 (Act 23/12, section 19) and now provides a right of appeal from “the judgment, sentence or order of a Magistrate”.

Justice Scott then ordered that the Respondents be awarded their costs of the appeal and this application, to be taxed if not agreed.”

The main points

  • Tonga’s Supreme Court has ordered Prime Minister ‘Akilisi Pohiva to pay Princess Pilolevu, former Prime Minister Lord Tu’ivakano and former Tongan Minister of Law Clive Edwards their legal costs after a lawsuit he launched against them failed.
  • Pohiva filed a private criminal prosecutions against the three and the Friendly Islands SatelliteCommunication Ltd in the Fasi Magistrate Court on 12 February 2013.”
  • Pohiva had brought an action charging them with several offences including theft, conspiracy, aiding and abetting and receiving about US$18 million of the proceeds of a 2011 Tonga-China Economic and Technical Cooperation Agreement loan from the People’s Republic of China to Tongan government.
  • Last year the Magistrate’s Court in Nuku’alofa ruled that there was an absence of evidence to show dishonesty and discharged all four of the accused.

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