'Akau'ola v Tonga Telecommunications Commission [2000] TOSC 17; C 0447 1999 (2 May 2000)

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

NO.C.447/99

BETWEEN

l. ISOPE 'AKAU'OLA
First Plaintiff

2. VISESIO SELE
Second Plaintiff

AND

TONGA TELECOMMUNICATIONS COMMISSION
Defendant

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel:
Miss L. Tonga for plaintiffs
Mr L. Foliaki for defendant

Hearing: 3, 4 and 12 April
Ruling: 2 May 2000.

RULING

The plaintiffs were employed by the defendant for some years and each had a telephone at his home. By the middle of 1998 they had accumulated arrears on their telephone bills exceeding $7,000.00 in the case of the first plaintiff and $12,000.00 in the case of the second plaintiff.

In June 1998 the Board decided to take steps to recover the arrears on the bills of a number of employees and decided that any employee who had a bill in excess of $4,000.00 should pay it within six months or be subject to instant dismissal.

By 29 January 1999, the plaintiffs, having not paid off their arrears, were sent a letter dismissing them and they bring this action claiming that dismissal was in breach of the terms of the Act and of natural justice because the plaintiffs were not given an opportunity to be heard.

At a late stage in the plaintiffs' case, Miss Tonga sought to introduce an additional claim that the dismissal was not in accordance with the regulations of the Commission. That had not been pleaded and I refused the application.

At the close of the defendant’s case, Mr Foliaki submits there is no case to answer. His basic contention is that the evidence as revealed at this stage shows the Commission did give the plaintiffs an opportunity to make representations. His case is that the Board decision of 26 June 1998 was communicated to the plaintiffs and that was proper notice of the position.

The difficulty he faces in terms of a submission at this stage is that the plaintiffs dispute they were ever shown that decision. That is an issue of fact that will have to be determined before I can decide that case. The plaintiffs say that they were not told and only later found out that they were under threat of instant dismissal. That is sufficient to establish a prima facie case and the submission fails. The case must proceed.

NUKU'ALOFA, 2 May 2000.

CHIEF JUSTICE