TONGA

COMMODITIES BOARD DISSOLUTION ACT 1991

No. 21 of 1991

I assent,
TU'IPELEHAKE
28th November, 1991.
AN ACT
TO PROVIDE FOR THE INCORPORATION OF A COMPANY UNDER THE COMPANIES ACT BY THE NAME TONGA INVESTMENTS LIMITED AND FOR THE TRANSFER OF THE ASSETS, RIGHTS, LIABILITIES AND INTEREST OF THE COMMODITIES BOARD TO THAT COMPANY AND TO REPEAL THE COMMODITIES BOARD ACT 1973.
[20th November, 1991]
BE IT ENACTED by the King and the Legislative Assembly of Tonga in the Legislature of the Kingdom as follows:
1	Short Title and Commencement
(1) This Act may be cited as The Commodities Board Dissolution Act 1991.
(2) Except as provided in subsection (3) of this section, this Act shall come into force on the day that it receives the Royal Assent.
(3) Section 5 of this Act shall come into force on a date to be appointed for the commencement of that section by His Majesty by Order-in-Council.
2	Interpretation
In this Act unless the context otherwise requires - 
	"Appointed day" means the date appointed for the commencement of Section 5 of this Act;
	"Board" means the Commodities Board established under The Commodities Board Act 1973;
	"Commodity" means any produce or product of agricultural or other rural occupation and any commercial product of the land or of the sea and any article of commerce prepared or manufactured from any of these;
	"Company" means the company formed and registered under section 3(1) of this Act;
	"Instrument" includes
	(a) Any instrument (other than an enactment) of any form or kind that creates, evidences, modifies, or extinguishes rights, interests, or liabilities or would do so if it or a copy thereof were lodged, filed, or registered under any enactment; and
	(b) Any judgment, order, or process of a court;
	"Liabilities" means liabilities, debts, charges, duties, and obligations of every description whether present or future, actual or contingent, and whether payable or to be observed or performed in Tonga or elsewhere;
	"Ministers" means the Minister of Finance and the Minister of Labour, Commerce, Industries and Tourism;
	"Property" means property of every kind whether tangible or intangible, leasehold or personal and, without limiting the generality of the foregoing, includes -
	(a) Choses in action and money;
	(b) Goodwill;
	(c) Rights, interests, and claims of every kind in or to property, whether arising from, accruing under, created or evidenced by or the subject of, an instrument or otherwise and whether liquidated or unliquidated, actual, contingent, or prospective;
	"Regulation of any commodity" means the sale, export, disposition, delivery, grading or payment of or for any commodity;
	"Reserves" means the amount calculated as the difference between the balance sheet value of total assets and the value of liabilities, provisions and issued capital.
	"Rights" means all rights, powers, privileges, and immunities, whether actual, contingent, or prospective;
	"Undertaking" means the property, rights and liabilities of the Board.
3	Incorporation of company and subsidiary companies
(1) The Board shall, within 30 days of the entry into force of this Act, form and register under the Companies Act a company which shall be a private company limited by shares that has the name "Tonga Investments Limited".
(2) All the shares in the capital of the company shall, on its incorporation, be subscribed for by the Ministers on behalf of the Crown in equal proportions and no shares in the capital of the company shall be issued or allotted by the company before the appointed day unless those shares are issued or allotted to the Ministers in equal proportions.
(3) On the appointed day all the shares in the capital of the company subscribed for in accordance with subsection (2) of this section and any other shares in the capital of the company issued to the Ministers before the appointed day shall be deemed to have been allotted as fully paid up to each of the Ministers in equal proportions.
(4) If the reserves of the Board are not allocated in full in paying up the shares subscribed for in the capital of the company on its incorporation the directors of the company may resolve to treat the shares as having been issued at a premium and, in that event the company shall be deemed to have issued the shares at a premium the amount or value of which is equal to the whole or such part of the balance of the reserves as shall be determined by the directors.
(5) Nothing in this section shall prevent the name of the company being changed in accordance with the provisions of the Companies Act.
4	Ministers shareholding
(1) Each of the Ministers may, from time to time, on behalf of the Crown subscribe for or otherwise acquire shares in the capital of the company in addition to the shares subscribed for under section 3 of this Act.
(2) Any money required to be paid by any of the Ministers for the purpose of subsection (1) of this section shall be paid out of money appropriated by the Legislative Assembly for the purpose.
(3) Shares in the capital of the company in the name of a person described as the Minister of Finance or the Minister of Labour, Commerce, Industries and Tourism shall be held by the person for the time being holding the office of the Minister of Finance or the Minister of Labour, Commerce, Industries and Tourism as the case may be.
(4) Notwithstanding any other enactment or rule of law, it shall not be necessary to complete or register a transfer of shares in the capital of the company consequent upon a change in the person holding office as the Minister of Finance or the Minister of Labour, Commerce, Industries and Tourism, as the case may be.
(5) Each of the Ministers may exercise all the rights and powers attaching to the shares in the capital of the company held by that Minister.
5	Transfer of undertaking of the Board
(1) On the appointed day, by virtue of this Act the undertaking of the Board shall vest in the company.
(2) On the date so appointed -
	(a) The Board shall be deemed to be dissolved;
	(b) Every person holding office as a member of the Board of Directors of the Board shall cease to hold that office;
	(c) Every employee of the Board shall cease to be employed by the Board;
	(d) All regulations, policies, procedures and guidelines of any sort whatsoever relating to employees of the Board shall be deemed to be revoked:
	(e) All pension, superannuation or other schemes established by the Board for the benefit of employees of the Board shall be deemed to have lapsed; and
	(f) All objects, functions, powers, authorities, rights and obligations of the Board in relation to the regulation of any commodity shall be deemed to have lapsed and the company shall have no responsibility for the regulation of any commodity.
(3) On or before the appointed day full pension, leave and redundancy entitlements will be paid out to all staff.
6	Consequential provisions on transfer of undertaking of the Board
Without limiting the generality of section 5 of this Act, the following provisions shall have effect on and from the appointed day.
	(a) A reference (express or implied) to the Board or to the Director of the Board in any other Act, or in any regulation, order, or notice made or given under any enactment, or in any instrument, register, record, notice, security, document or communication made, given, passed or executed before or after the appointed day, shall be read and construed as a reference to the company or to the chief executive of the company as the case may be;
	(b) All contracts, agreements, conveyances, deeds, leases, licenses, and other instruments, undertakings, and notices (whether or not in writing), entered into by, made with, given to or by, or addressed to the Board (whether alone or with any other person) before the appointed day and subsisting immediately before the appointed day shall, to the extent that they were previously binding on and enforceable by, against, or in favour of the Board, be binding on and enforceable by, against, or in favour of the company as fully and effectually in every respect as if, instead of the Board, the company had been the person by whom they were entered into, with whom they were made or to or by whom they were given or addressed, as the case may be;
	(c) An instruction, order, direction, mandate, or authority given to the Board and subsisting immediately before the appointed day shall be deemed to have been given to the company;
	(d) All the rights and liabilities of the Board as bailor or bailee of documents or chattels shall be vested in and assumed by the company;
	(e) A negotiable instrument or order for payment of money which, before the appointed day, is drawn on or given to or accepted or endorsed by the Board or payable at a place of business of the Board shall, unless the context otherwise requires, have the same effect on and after the appointed day as if it had been drawn on or given to or accepted or endorsed by the company instead of the Board or was payable at the place of business of the company;
	(f) Any action, arbitration or proceedings or cause of action which, immediately before the appointed day, is pending or existing by, against, or in favour of the Board or to which the Board is a party may be prosecuted, and without amendment of any writ, pleading or other document, continued and enforced by, against, or in favour of, the company;
	(g) Any land or property situated outside the Kingdom which, immediately before the appointed day, is owned by the Board, shall, from the appointed day, be deemed to be owned by the company.
7	Certain matters not affected by transfer of undertaking of the Board
Nothing effected or authorised by this Act ‑
	(a) Shall be regarded as placing the Board, or the company, or any other person in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong; or
	(b) Shall be regarded as giving rise to a right for any person to terminate or cancel any contract or arrangement or to accelerate the performance of any obligation; or
	(c) Shall be regarded as placing the Board, or the company, or any other person in breach of any enactment or rule of law or contractual provision prohibiting, restricting, or regulating the assignment or transfer of any property or the disclosure of any information; or
	(d) Shall invalidate or discharge any contract or security.
8	Books and documents to remain evidence
(1) Any document, matter, or thing which, if this Act had not been passed, would have been admissible in evidence in respect of my matter for or against the Board shall, on and after the appointed day, be admissible in evidence in respect of the same matter for or against the company.
(2) In this section, "document" has the same meaning as in section 2 of the Evidence Act.
9	Register
(1) Neither the Minister of Lands nor any other person charged with Register the keeping of any books or registers shall be obliged solely by reason of the foregoing provisions of this Act to change the name of the Board to that of the company in those books or registers or in any document.
(2) The presentation to the Minister of Lands or other person of any instrument, whether or not comprising an instrument of transfer by the company -
	(a) Executed or purporting to be executed by the company; and
	(b) Relating to any property held immediately before the appointed day by the Board; and
	(c) Containing a recital that the property has become vested in the company, by virtue of the provisions of this Act ‑
shall, in the absence of evidence to the contrary, be sufficient proof that the property is vested in the company.
10	Members of the Board not personally liable
No person who, immediately before the appointed day, was a member of the Board, or who, before the appointed day, ceased to be a member of the Board, shall be personally liable for any act done or default made in good faith before the appointed day by the Board, or by any member of the Board, in the course of operations of the Board.
11	Taxes
(1) For the purposes of the Income Tax Act 1976, and any other enactment that imposes or provides for the collection of a tax, duty, levy, or other charge -
	(a) Subject to paragraph (b) of this subsection, the Board and the company shall be deemed to be the same person;
	(b) Notwithstanding the provisions of section 6(a) of this Act, for the purposes of section 7 of the Income Tax Act 1976, the Commodities Board and the company shall not be deemed to be the same person; and
	(c) In respect of the liability for and the assessment, determination, or imposition of taxes, duties, levies, or other charges accruing as from the appointed day under any such enactment, all transactions entered into by, and acts of, the Board before the appointed day shall be deemed to have been entered into by, or to be those of, the company and to have been entered into or performed by the company at the time when they were entered into or performed by the Board.
(2) For the purposes of sections 41(2) and (3) of the Income Tax Act 1976 (which relate to the carrying forward of losses) any loss incurred by the Board in any income year before the appointed day shall, so far as it has not been deducted from or set off against its assessable income in any subsequent income year, be deemed to have been incurred by the company and as if at all times during the period commencing with the beginning of the first income year in which any such loss was incurred and ending immediately before the appointed day, the shares in the company were held directly by the Ministers.
12	Principal objective of the company
The principal objective of the company shall be to operate as a successful business and, to this end, to be as profitable and efficient as comparable businesses.
13	Statement of corporate intent
(1) The company shall deliver to the Ministers a statement of corporate intent not later than 1 month after the commencement of each financial year.
(2) Each statement of corporate intent shall in respect of the financial year in which it is delivered and each of the immediately following 2 financial years, provide the following information -
	(a) The commercial objectives of the company;
	(b) The nature and scope of the activities to be undertaken;
	(c) The ratio of consolidated shareholders; funds to total assets, and definitions of those terms;
	(d) The accounting policies;
	(e) The performance targets and other measures by which the performance of the company may be judged in relation to its objectives;
	(f) An estimate of the amount or proportion of accumulated profits and capital reserves that are intended to be distributed to shareholders of the company;
	(g) Any activities for which the company seeks compensation from the Crown (whether or not the Crown has agreed to provide such compensation);
	(h) An estimate of the commercial value of the company and the manner in which, and the times at which, that value is to be reassessed;
	(i) Such other matters as are agreed between the company and the Ministers.
(3) It shall be the duty of the company to have regard to the principal objective referred to in section 12 of this Act and to implement those matters set out in its statement of corporate intent.
14	Sale of shares in or undertaking of company
(1) The Ministers may, at any time or times in accordance with a resolution passed by not less than 75 per cent of the directors of the company approving the sale or disposition, sell or otherwise dispose of all or any of the shares held by the Ministers in the capital of the company.
(2) The company may, at any time or times, by a resolution passed by not less than 75 per cent of the directors of the company approving the sale or disposition, sell or otherwise dispose of any part of its undertaking to one or more of its subsidiary companies or to any other person or company.
(3) In the event of the sale or disposition of all or any of the shares in the capital of the company the provisions of section 12 and 13 of this Act shall cease to apply to the company with effect from the transfer date.
(4) For the purposes of subsection 3 of this section the term "transfer date" means the date on which the legal title to the shares in the capital of the company held by the Ministers is transferred. The publication in the Gazette by the Ministers of a notice stating that the legal title to those shares was transferred on a date specified in the notice shall be conclusive evidence that the legal title to those shares was transferred on that date.
15	Formation of subsidiary companies and sale or disposition of shares in or undertaking of subsidiary company
(1) The company may, at any time or times, form and register under the Companies Act a subsidiary company or subsidiary companies having such names, objects, directors and share capital as the company may determine.
(2) The company may, at any time or times, by a resolution passed by not less than 75 per cent of the directors of the company, approving the sale or disposition, sell or otherwise dispose of all or any of its shares in any of its subsidiary companies to another person or company.
(3) Any subsidiary company may, at any time or times, by a resolution passed by not less than 75 per cent of the directors of such subsidiary company approving the sale or disposition, sell or otherwise dispose of any part of its undertaking to another person or company.
16	Repeal 
The Commoddities Board Act 1973 and the Commodities Board (Copra Stabilization Fund) Regulations 1977 are hereby repealed.

Passed in the Legislative Assembly this 20th day of November 1991.