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Tu'akoi v Deputy Premier [1958] TongaLawRp 1; [1923-1962] Tonga LR 196 (12 December 1958)

[1923-1962] 2 Tonga LR 196

PRIVY COUNCIL OF THE KINGDOM OF TONGA

T. S. TU'AKOI AND ORS.
(Appellants, Plaintiffs)

v.

THE DEPUTY PREMIER AND ANOR.
(Defendants, Respondents)

This is an appeal from a decision of the Supreme Court (Hunter J.) dismissing a claim by the plaintiffs against the Deputy Premier and the Acting Minister of Police for wrongful dismissal. A report of the action in the Lower Court is to be found in Vol. I Tongan Law Reports at Page 108 where the facts are sufficiently set forth.

The Privy Council (Hammett C.J.) dismissed the appeal and on the 12th December, 1958 delivered the following judgment.

The two Plaintiff-Appellants, who were members of the Police Force, sued the two defendants for damages for wrongful dismissal by the Cabinet. Since the two cases arose out of the same facts and were for similar causes of action they were, by consent, consolidated in the Court of below and dealt with together. When the cases were opened before the Court below it appeared that the facts were not disputed but the Defendants submitted that the claims must be dismissed as not disclosing any cause of action.

After hearing these submissions the learned trial judge held that on the agreed facts these actions did not lie and dismissed them. The two Plaintiffs have now appealed.

The facts relied upon by the Plaintiffs were briefly as follows:-

The two Plaintiffs were members of the Tongan Police Force. On 27th March, 1957 they were dismissed from the Police Force by the Cabinet, of whom both the Defendants are members, as a result of a report made to the Cabinet by the Acting Minister of Police. The claims of the Plaintiffs for damages for wrongful dismissal were brought against the Defendants in their official capacities and not against them personally. It is claimed that the complaints made against them were ill-founded and even if well-founded did not merit such a severe penalty as dismissal.

In the course of his judgment the learned trial judge said,

"A servant of the Crown has generally no remedy for dismissal. This is a well established principle of English Law. There is no law in Tonga which deals with the matter but as I have said on numerous occasions, when the Tongan Law is silent on a question of legal principle this Court will rely on the established principles of English Common Law so far as applicable to circumstances in Tonga."

He held that since under English Common Law principles, the Crown can, in the absence of express provisions in an act of Parliament, dismiss its servants at pleasure these actions do not lie and must be dismissed.

Both the Plaintiffs have appealed on the ground that the learned trial judge was not correct in applying English Law to a case tried by the Supreme Court of Tonga.