Paea v Prisons Court of Inquiry [2003] TOLawRp 35; [2003] Tonga LR 266 (25 July 2003)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

CA 06/2003

Paea

v

Prisons Court of Inquiry

Burchett and Tompkins JJ
23 July 2003; 25 July 2003

Practice and procedure – appeal against partial strike out – lack of clarity – appeal dismissed

On 11 May 1999, the Appellant was suspended from his position as an Assistant Chief Warder in the Prisons Department upon it being alleged that he had committed breaches of the Prison Rules made under the Prisons Act (Cap 36). On 30 October 2000, summonses issued charging him with breaches of rules 88 and 89. Those charges were heard by a Prisons Court of Inquiry, presided over by a Magistrate, which convicted the Appellant on 19 December 2000 of four breaches of rule 88 and one breach of rule 89. He was fined $15 for each offence under rule 88, and sentenced to 14 days imprisonment for the offence under rule 89. The Appellant launched proceedings in the Supreme Court in January 2001 to challenge his convictions, and sought declaratory relief and certiorari to quash the orders against him. He obtained bail. After an initial application by the Respondents to strike out his statement of claim, an amended statement of claim was filed, and the Respondents then made a further application seeking to have it struck out. That application was partially successful, and the present appeal was brought by the Appellant against the striking out of some portions of his amended statement of claim.

Held:

1. The amended statement of claim lacked clarity and gave the court little assistance in the definition of the issues.

2. It was clear to the court that one reason why the appeal was brought was the Appellant's desire to pursue yet further points which had not been sufficiently identified in the vague terms of the Amended Statement of Claim. The court pointed out that the remedy was not to be obtained by this appeal, but by a clear statement of any such further point in a further amended pleading. Interlocutory decisions were not final, and it remained open to the Appellant to seek leave to make appropriate amendments. The Appellant's main problem was that no clear bases of claim were been formulated by him.

3. The appeal was dismissed.

Statutes considered:

Prisons Act (Cap 36)

Rules considered:

Court of Appeal (Constitution of Court) Rules 2003

Prison Rules

Counsel for appellant: Mr Fifita
Counsel for respondents: Mr Kefu

Judgment

[1] This is yet another appeal brought at the present sittings which could only proceed by virtue of an order made by the Chief Justice under the Court of Appeal (Constitution of Court) Rules 2003, enabling its hearing by the Court constituted by two members.

[2] On 11 May 1999, the Appellant was suspended from his position as an Assistant Chief Warder in the Prisons Department upon it being alleged that he had committed breaches of the Prison Rules made under the Prisons Act (Cap 36). On 30 October 2000, summonses issued charging him with breaches of rules 88 and 89. Those charges were heard by a Prisons Court of Inquiry, presided over by a Magistrate, which convicted the Appellant on 19 December 2000 of four breaches of rule 88 and one breach of rule 89. He was fined $15 for each offence under rule 88, and sentenced to 14 days imprisonment for the offence under rule 89.

[3] Rules 88 and 89 are in the following terms:

"88. Any officer who shall bring in or carry out of the prison, or attempt to bring in or carry out, to or from any prisoner any money, clothing, provisions, tobacco, letters, papers or any other unauthorised article shall be forthwith suspended from duty and be liable to dismissal.

89. Officers shall not make any unauthorised communication concerning the prison or prisoners to any person whatever, and shall not, without authority, communicate to the public information derived from official sources or connected with his [sic] duties or the prison. Any disregard of this rule will render the officer concerned liable to dismissal."

These rules, according to the respondents, were made under s 5 of the Prisons Act, which authorizes the making of rules, inter alia, for "the government of prisons".

[4] By s 15 of the Act, provision is made for the setting up of a Prisons Court of Inquiry in respect of "any charges of breach of discipline or offences brought against any prison officer except those of a petty nature the punishment for which may be provided for by rules made under [the] Act". Relevantly, the Court so established "shall have power", by s 16, "to hear and determine all charges of ... serious breaches of good order or discipline or of any prison rule, which may be brought against any prison officer and where no punishment is expressly provided for an offence may impose a fine not exceeding $50 or imprisonment for any term not exceeding 2 months".

[5] The Appellant launched proceedings in the Supreme Court in January 2001 to challenge his convictions, seeking declaratory relief and certiorari to quash the orders against him. He obtained bail. After an initial application by the Respondents to strike out his statement of claim, an amended statement of claim was filed, and the Respondents then made a further application seeking to have it struck out. That application was partially successful, and the present appeal has been brought by the Appellant against the striking out of some portions of his amended statement of claim.

[6] Unfortunately, the amended statement of claim is quite lacking in clarity and gives the Court very little assistance in the definition of the issues. On the hearing of the strike-out application, the Chief Justice did manage, nevertheless, to identify several distinct issues. Of these, his Honour drew attention first to paragraph 1 (ii) of the prayers for relief, which seeks a declaration that rule 88 of the Prison Rules "is unreasonable". The only basis on which this prayer is supported by the matters set out in the Amended Statement of Claim is that the giving of cigarettes to prisoners is a common practice of visitors to prisons and also prison officers, although these other persons have not been prosecuted (of course rule 88 only applies to "any officer"). The learned Chief Justice could see no cause of action or legal basis to justify para. 1 (ii), and he ordered that it be struck out. We have no doubt he was correct to do so. The matters put forward for the Appellant cannot possibly make the rule unreasonable.

[7] The next matter identified was the subject of prayer 1 (iii), by which a declaration was sought that the Prison Court of Inquiry "had no jurisdiction" to hear the summonses alleging breaches of rule 88, and prayer 2, by which certiorari was sought on the same basis. The Appellant's case here, to the extent that it was articulated in the Amended Statement of Claim, was founded on an allegation in para. 35 that the Prisons Court of Inquiry "has no jurisdiction to entertain [the] summonses [in question] for they were petty natures". Mr. Fifita's argument, it appears, was based on the words "except those of a petty nature" in s.15 and the contrasting words "serious breaches" in s.16. But, as the Chief Justice pointed out, the question had necessarily to be decided by the Prisons Court of Inquiry; its determination could not be beyond that court's jurisdiction. Nothing pleaded in the Amended Statement of Claim could lead to the conclusion it was not reasonably open to be decided that the offences were not of a petty nature within s 15, but on the contrary involved serious breaches within s 16.

[8] The remaining issues identified by his Honour as being raised by the Amended Statement of Claim were whether the Court below had the power to commit the Appellant to prison for his breach of rule 89, and whether the Prison Rules were validly made. Those matters were not the subject of any strike-out order.

[9] It seems plain that one reason why the appeal was brought was the Appellant's desire to pursue yet further points which had not been sufficiently identified in the vague terms of the Amended Statement of Claim. We feel obliged to point out that the remedy is not to be obtained by this appeal, but by a clear statement of any such further point in a further amended pleading. Interlocutory decisions are not final, and it remains open to the Appellant to seek leave to make appropriate amendments. His real problem is that no clear bases of claim have yet been formulated by him.

[10] The appeal must be dismissed with costs.