Tonga’s Minister of Police Lord Nuku refused to co-operate with the Land Court, tried to cover up his real financial position and tried to avoid responsibility for millions of pa’anga worth of debt, the Land Court has been told.
Lord Chief Justice Whitten made the comments in his summary of a hearing of an application to have an earlier judgement against Lord Nuku enforced.
The court heard that Lord Nuku owed just over TP$4 million and had earlier been the subject of a foreclosure order by the BSP bank over a debt of nearly TP$500,000.
The judgement in the Land Court was the latest stage of a long running dispute involving Lord Nuku, a Chinese company and Lord Luani.
On 5 May 2017 Scott J gave judgment in favour of Lord Luani against Lord Nuku, Yanjian Group Co and Yanjian Tonga Limited, jointly and severally, for damages for trespass to land in the sum of TP$5,556,000.
On September 6, 2017 the Court of Appeal upheld the appeal by and set aside the judgment against Yanjian Tonga Ltd.
The Court also allowed the appeal by Lord Nuku and Yanjian Group Co, in part, by reducing the damages award to TP$3,380,335 with costs and interest at the rate of 10% per annum from that date until satisfied.
Yanjian Group Co has since been wound up.
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Earlier this year Lord Luani applied for the judgement to be enforced by an attachment of Lord Nuku’s salary as an MP.
Because the ruling appeared to be the first of its kind in the kingdom, Lord Chief Justice Whitten had taken guidance from the current UK rules of civil procedure.
In April 2020, Lord Nuku submitted information to the court on his financial status. Included was a letter from the BSP Bank stating that it had foreclosed on a loan and demanded repayment of TP$484,871.16 with interest.
Lord Nuku offered to pay TP$576 per week towards the judgement made against him, which would total TP$30,000 per annum. He noted that Lord Luani was in the process of enforcing the judgment debt against Yianjian Group Co which he described as “a substantial Chinese company who made money out of the quarry.”
Deputy CEO of the Treasury Division of the Ministry of Finance and Revenue Makeleta Siliva, provided a letter to the court dated May 8, 2020. In it, she confirmed that Lord Nuku’s salary entitlements had been withheld since May 5, 2019.
Lord Nuku said he could not confirm claims that he had been paid TP$1.6 milion by Yanjian because it was the subject of disputes being resolved by the courts.
Lord Chief Justice Whitten said Lord Nuku had failed to provide any documents supporting his claims about his financial status.
“In those circumstances, it is fair and reasonable to attach Lord Nuku’s full Parliamentary net salary leaving him his housing and noble’s allowances to live on,” the judge said.
“The whole of the withheld salary and allowances since May 2019, which as at 3 May 2020 stood at $48,727, should be paid to Lord Luani.
The judge said that when the size of a debt was so large in comparison to a debtor’s earnings, that there was no realistic prospect of the debt being satisfied or even significantly reduced within a reasonable period the most likely avenue available to judgment creditors was bankruptcy proceedings. However, it had been discovered that Tonga no longer had bankruptcy laws.
Lord Nuku currently owed just over TP$4 million, with interest running at TP$300,000 a year. His salary was insufficient to meet this debt. In any case, any order made against his Parliamentary salary would operate only so long as Lord Nuku remains a member of Parliament.
The next general election was scheduled to take place in November 2021, but Clause 65 of the Constitution said nobody could stand for election if an order had been made against them and the moneys owed had not been repaid on the day they nominated.
“Accordingly, if by the time of nominations for the next general election, Lord Nuku has not paid or otherwise secured a release of the judgment debt, it is unlikely he will be eligible to stand for re-election. In that event, any order made on this application will cease to operate,” Lord Chief Justice Whitten said.
Lord Nuku had been offered the opportunity to present before the Court all relevant financial information to enable the court to determine what amount should be attached from his earnings.
“Unfortunately, and for the reasons which follow, I am compelled to the view that the evidence presented by Lord Nuku was unsatisfactory and that he failed to engage bona fide in the process,” the judge said.
“Lord Nuku’s evidence was substantially deficient and incomplete.
“The lack of detail, transparency, consistency and documentary support for Lord Nuku’s evidence leads to the conclusion that rather than co-operate, he sought to obfuscate it in order to avoid responsibility for payment of the judgment debt.
“I am therefore not satisfied that his evidence as to his expenses and, from that, what must be his other sources of income, was credible or reliable.
“It is more likely than not that Lord Nuku has other significant sources of income which he has not disclosed.
“I order that half of his net salary, being $1060 per fortnight (or $27,560 per annum), be attached and paid to the judgment creditor as some amount towards reducing the growing judgment debt.
“Had the application originally been made for an order for attachment of earnings, rather than an application for an order in respect of salary, any amounts ordered to be attached would have commenced to be paid from that date.”