Vakameitangake v Kingdom of Tonga [1998] TOSC 2; C 0603 1995 (27 August 1998)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

NO.C.603/95

BETWEEN:

LISIATE VAKAMEITANGAKE
Plaintiff

AND:

KINGDOM OF TONGA
Defendant

BEFORE THE HON. MR. JUSTICE LEWIS

COUNSEL: Mr Siosifa Tu'utafaiva for the Plaintiff
:Ms Linda Simiki for the Defendant

Date of Hearing: 24 October, 1996
Date of Judgment: 27 August, 1998

JUDGMENT

On 14 June 1995 the Plaintiff was granted leave to have Judicial Review of the decision of his Majesty's Cabinet Decision No. 462 dated 5 April 1995.

The Plaintiff's claim sought a quashing of the Cabinet decision which dismissed him from the Civil Service 'for smuggling of Winfield blue 25 cigarettes, and sought to have him reinstated to his previous position of principal Customs security officer. He was dismissed on 19 January 1995.

Proceedings in the Judicial Review had reached the hearing stage when the Crown Prosecutor filed an indictment alleging breaches of the Customs laws. This matter was stood over, the Criminal proceedings were heard and decided and then appealed. The Court of Appeal dismissed the Appeal against conviction but varied the penalty.

The Plaintiff and Defendant seek a ruling from written submissions. I now rule. This is not a merits based review. Judicial Review is the process by which the Court exercises its supervisory jurisdiction, here in relation to a Cabinet decision. Judicial review is concerned with the decision making process itself.

Here the Plaintiff's specific complaints concerning the Cabinet decision are:

1. The Cabinet decision is largely based on a Report of the then Acting Auditor General which contains 'insubstantial evidence'(or the Plaintiff's misconduct).

2. The Civil Service Board used erroneous findings of fact and applied them to the statutory definition of smuggling and arrived at an erroneous conclusion of law.

3. The Plaintiff was denied natural Justice by being given no right to be heard by Cabinet.

Those are the main heads of complaint by the Plaintiff. I have considered the evidence in affidavit form produced to the Court. There is and there was ample evidence before the Cabinet to enable it to arrive properly at the decision to dismiss the Plaintiff.

The Plaintiff was suspended from the duty by Cabinet minute dated 18 January 1995, [P9 of the production of the Plaintiff]. Thereafter he was given ample opportunity to place his case before the Cabinet albeit no in person. He was informed of the suspension [Production P10]. He was told he had 14 days within which to submit a written reply explaining why he should not be dismissed [Production P10]. On 23 January he was formally given specific notice of charges again he was invited to show cause why he ought not be dismissed - [Production P11]

On 26 January 1995 (erroneously dated '1994') he specifically denied the charges and said that he did not believe that the Civil Staff Board had any 'fact to support them' - [production P13]. On 20 February 1995 he was notified by the Civil Staff Board representative 'Etina Kilisimasi of further charges and given copies of representations from 2 officer who implicated him in a material particular and he was invited to respond within a further 14 days - [Production P16]. The Plaintiff answered through his solicitors. Some further correspondence followed and then on 28 March 1996 the Plaintiff swore an affidavit making some responses tot he allegations against him.

There was no denial of the Plaintiff's right to make an answer or submissions on his own behalf, on the contrary it seems that every opportunity was given him to make reply and he responded. As to the allegation of bias in the 'AAG" Report. I can find none. Nor can I find any bias in the CSSB Report. Having considered the arguments of counsel I conclude that the Plaintiffs claims in this review must fail.

I order the Plaintiff pay the Costs of the Defendant to be taxed or agreed.

NUKU'ALOFA, 31 August, 1998

CHIEF JUSTICE.