Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

'Asitomani v Superintendent of Prison [2003] TongaLawRp 18; [2003] Tonga LR 84 (29 April 2003)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 16/2001

'Asitomani

v

Superintendent of Prison

Ford J
17 February, 7 March, and 15 April 2003; 29 April 2003

Practice and procedure – suspension and dismissal of prison warder – judicial review of decision – not public law Damages – lost wages for unlawful suspension period – allowed

Mr 'Asitomani, the plaintiff, joined the prison service in 1970. In early 1999 he held the position of Assistant Chief Warder at Sinai Prison in 'Eua. On 11 March 1999 he received a letter from the Minister of Police suspending him from duty pending inquiries into incidents of alleged misconduct. Mr 'Asitomani was invited to respond to the allegations which he duly did in writing within the 14 day period stipulated. A further exchange of correspondence followed during April 1999 and then nothing of significance happened until July 2000 when the Acting Superintendent of Prisons, Sione Falemanu, was directed by the Minister to communicate to Mr Asitomani a proposal under which he would be reinstated to his former position as from 11 July 2000. The proposal was that Mr Asitomani would be paid his full pay for the period of his suspension (apart from the initial three months) but, as a disciplinary measure, he would be excluded from staff promotions he might otherwise have received during the period of his suspension. There was then an exchange of correspondence and the plaintiff refused to accept reinstatement on the Minister's terms. He wrote the Minister an insulting letter and the Minister recommended to Cabinet that the plaintiff be dismissed. The plaintiff commenced judicial review proceedings on 8 January 2001. He was outside the three-month limitation period provided for in the Rules but no issue was made of that. The plaintiff sought by way of relief various prerogative remedies and damages totalling $115,376.49. After allowing by way of mitigation for income the plaintiff received through other employment, the damages were quantified at $103, 517.54.

Held:

1. The review procedure could be invoked only where some element of public law was involved and it was not an available remedy to a litigant seeking to enforce private rights only.

2. The main reason for the inappropriateness of the judicial review process was that in most employment related cases the litigant was not so much concerned with a review of the decision-making process as it was with seeking a judgment based on the merits. When that was the objective, a litigant should simply proceed by way of ordinary action.