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Palota v Toafa [2015] TVHC 3; HC Civil Case 3.15 (14 March 2015)

IN THE HIGH COURT OF TUVALU
At Funafuti
Civil Jurisdiction

HC. Civil. Case no. 3/15

Between:

Peiatoa Palota
Petitioner

V

Maatia Toafa
Enele Sosene Sopoaga
Taukelina Finikaso
Monise Laafai
Vete P Sakaio
Faauoa Maani
Namoliki Sualiki
Respondents

BEFORE THE JUDGE

Mr. Afele Kitiona for the Petitioner
Respondents unrepresented.

Reasons for Dismissal of Petition

Yesterday, Friday 13th March, a petition was lodged with the High Court. The Petitioner is Peiatoa Palota. Seven gentlemen are named in the Petition as respondents all of whom are candidates at the General Election to be held next Thursday. The relevant part of the Petition:

"The Plaintiff petitioned to the Court to declare the Defendants' candidacy for the 2015 General Elections to the Legislative Assembly (Parliament) invalid because it could lead to a breach of the Constitution, relative section cited below:

Section 95 Disqualification from Election

(1) A person is not qualified to be elected as a member of Parliament if –

(e) he has been adjudged or otherwise declared bankrupt under a law of a Commonwealth country, and has not been discharged;..."

The Statement of Claim explains the complaint of the Petitioner: it is in December 2012 judgment aggregating $50,000.00 was given against the Respondents jointly and severally in a High Court action:

"Thus the Order is that the Defendants shall, jointly and severally, pay general damages of $35,000 and aggravated damages of $15,000. That sum is immediately payable. They must also pay the plaintiff's costs to be taxed if not agreed within 4 months."

Nothing has been paid.

The respondents are jointly and severally responsible for payment. That does not make any of them bankrupt, simply a debtor.

Before a person may be declared by a Court bankrupt it must be shown that his debts are greater than his assets, that he is unable to pay his debts as they fall due. The Court then takes control of the bankrupt's state. This is a separate procedure which has not happened. There is no provision in Tuvaluan law for declaring a person bankrupt. If there were are application to declare a person bankrupt resort would be had to the old English law.

The Respondents are not bankrupts, any of them. None therefore is disqualified from seeking election.

I should add that the Hon. Enele Sosene Sopoaga, in the absence of legal representation, addressed the Court on behalf of the Respondents. Mr. Afele Kitiona, lately retained by the Petitioner, had no submissions.

'The Petition is dismissed.

Date 14th day of March 2015.

_____________________
Hon. Robin Millhouse QC
JUDGE OF THE HIGH COURT OF TUVALU