'Asitomani v Superintendent of Prisons [2003] TOSC 21; C 0016 2001 (28 April 2003)

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

NO. C. 16/2001

BETWEEN:

'ALIFELETI HAISINI 'ASITOMANI
Plaintiff

AND:

1. SUPERINTENDENT OF PRISON
2. MINISTER OF POLICE
3. PRISONS DEPARTMENT
4. KINGDOM OF TONGA
Defendants

BEFORE THE HON JUSTICE FORD

COUNSEL: Mr Fifita for the plaintiff and Miss Simiki for the defendant.

Dates of written submissions: 17 February and 7 March and 15 April 2003.
Date of judgment: 28 April, 2003

JUDGMENT

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 appears to have 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.

A vitriolic exchange of correspondence then passed between the plaintiff and Mr Falemanu. Mr Asitomani, in one of his letters, said:

"iv. It is hard for me to believe the Minister's decisions are so inconsistent and unreasonable.

5. It is also hard for me to holy put my trust in someone who was instrumental in pressing for my dismissal from duty especially someone who was known to have sworn a false affidavit in court."
   

Mr Falemanu took that last reference as a personal slight on himself. He responded by warning Mr Asitomani to refrain from accusing him of having made a false affidavit.

Mr Asitomani refused to accept reinstatement on the Minister's terms. On 18 July 2000 the Minister wrote again to the Acting Superintendent of Prisons asking him to check whether Mr Asitomani's grievance was only with his salary cut or whether there was something else that he was not satisfied about. The Minister's letter concluded:

"If he chooses not to resume duty but rather stays and writes unpleasant letters, he is wrong. Does he want to resume duty with (the) Department or not?"

The letter was duly passed on and Mr Asitomani elected to respond directly to the Minister. In his rather lengthy letter dated 24 July 2000, Mr Asitomani challenged the legal basis for his suspension and went on to make a number of provocative and insulting remarks concluding his letter with the following requests (as translated):

"(i). That you recommend to Cabinet to transfer the Prisons Department to be taken care of by the Ministry of Justice so that the correctional aims of the institution can be taken care of more efficiently.

"(ii) That you (the Minister) resign from duty so that some better person can do the work more efficiently. It is regrettable that the King should make such an appointment because what the king envisaged his appointment could accomplish is nothing but turmoil and disorder in the eyes of the public."

Not surprisingly, the plaintiff's letter did not endear itself to the Minister. He responded by letter dated 27 July saying that he considered Mr Asitomani's letter seditious and disrespectful. He described the disrespect as "over the limits and rebellious indeed" and he said: "It clearly shows that you are not suitable for re-employment with this Department." The Minister concluded his letter by indicating that he would be recommending that the plaintiff should be dismissed from office.

The Minister's recommendation was duly presented to Cabinet. It consisted of a report enclosing the relevant documentation and concluded:

"On disciplinary grounds and with the recommendations from the Acting Superintendent, I have come to a very clear conclusion that this officer and his associates are not fit to be re-employed as this is detrimental to the good order, peace and discipline within the Prison Service. As a consequence, I recommend dismissal."

The evidence before the court does not disclose the significance (if any) of the reference to "his associates".

On 29 August 2000, His Majesty's Cabinet determined:

"That Assistant Chief Warder 'Alifeleti Haisini 'Asitomani be dismissed from the Prison Service with the effect from 11 March 1999."

Counsel for the plaintiff submitted that the plaintiff was driven to use strong language in his correspondence by the defendants themselves. The plaintiff, however, did not say that, in any of the three affidavits which he has filed.

The plaintiff commenced the present 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. In his statement of claim, which comprises of some 70 paragraphs, the plaintiff seeks by way of relief various prerogative remedies and damages totalling $115,376.49. In submissions, the damages figure, after allowing by way of mitigation for income the plaintiff has received through other employment, has been quantified at $103, 517.54.

There has been a considerable delay in having the matter brought on for hearing but a review of the Court file shows that the delay is not the fault of the court. In any event, at no stage has the plaintiff proceeded with any sense of urgency. Initially, a hearing was allocated for May 2002 but that date was vacated, without any opposition from the plaintiff, to allow the Crown to obtain an affidavit from a witness in New Zealand. In due course, a new hearing date was allocated for 3 December 2002 but, when the case was called that day, plaintiff's counsel indicated to the court that he would prefer to have the matter dealt with by way of written submissions. Crown counsel consented to that request.

I mention these matters because, in theory at least, judicial review proceedings were designed to enable the court to deal with applications more speedily and at less expense than had previously been the case. It would appear, however, that those objectives have not been achieved in the present proceeding.

When the judicial review procedure was introduced back in 1977, in the form of Order 53 of the English Rules of the Supreme Court, it created, as was described in the White Book (1991) pp.14/1 and 14/6:

". . . . a uniform, flexible and comprehensive code of procedure for the exercise by the High Court of its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals or other persons or bodies which perform public duties or functions . . . . The remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself."

Order 27 of the Tonga Supreme Court Rules follows the English RSC Order 53. The review procedure can be invoked only where some element of public law is involved and it is not an available remedy to a litigant seeking to enforce private rights only. In Vaioleti v Tonga Development Bank (unreported) No.C.179/99, Ruling dated 9/4/99, Ward C.J. refused an application by an employee for judicial review of his dismissal decision. The Chief Justice made the following observations:

"In determining whether a case is appropriate for judicial review, the court must consider whether it is an action that requires the enforcement of private or public law rights. The definition of public law is not clear and modern case law is continually changing the distinction between private and public law rights. Moreover, judicial review has been allowed in some cases involving substantial elements of private law and refused in some where there is undoubtedly a public law element. In general terms, the more a case involves the enforcement of private law rights, the less likely it is that the court will consider it is a suitable case for judicial review."

The present case, perhaps, illustrates some of the shortcomings that can arise when a plaintiff uses the review process, instead of ordinary action, to seek redress for grievances arising out of an employment relationship. Although based in public law, in the sense that the relationship is regulated by the Prisons Act (CAP. 36) and the Prison Rules rather than a written contract of employment, the plaintiff's grievances inevitably involve private rights and as such the review process is inappropriate. The remedies now being sought could have been invoked in a private law action.

There are exceptions to this general observation. In certain public law situations it will be appropriate for an employee to use the review process to seek from the court, for a particular purpose, one or other of the prerogative remedies. Had the plaintiff, for example, used the judicial review process during the long period of his suspension to review the Minister's actions at that stage then the matter may have taken an entirely different course and his dismissal may never have come about.

The main reason for the inappropriateness of the judicial review process is that in most employment related cases the litigant is not so much concerned with reviewing the decision-making process as with seeking a judgment based on the merits. When that is the objective, a litigant should simply proceed by way of ordinary action. As May L.J. observed in R v East Berkshire Health Authority, ex parte Walsh [1984] EWCA Civ 6; [1984] 3 All ER 425 (at 434):

"Employment disputes not infrequently have political or ideological overtones, or raise what are often described as 'matters of principle'.

On top of that, disputes arising out of disciplinary actions almost inevitably involve sharp conflicts in evidence with claims and counterclaims being thrown around with abandon. In such situations, it is appropriate that the court should determine the merits of the case on oral evidence properly tested by cross-examination. That option, however, is not available when a plaintiff elects to proceed by way of judicial review rather than ordinary action. In judicial review proceedings no oral evidence is called. The issues are determine on the strength of the affidavit evidence before the court and cross-examination on that affidavit evidence is the exception rather than the rule.

In McClaren v Home Office [1990] ICR 824 the Home Office sought to strike out an action brought against it by a prison officer upon the ground that the plaintiff ought to have proceeded by way of judicial review. The action related to a dispute over working hours. The plaintiff's appeal against the judge's order striking out his action was allowed by the Court of Appeal. Woolf L.J. said (at 836):

"In relation to his personal claims against an employer, an employee of a public body is normally in exactly the same situation as other employees . . . . the fact that a person is employed by the Crown may limit his rights against the Crown but otherwise his position is very much the same as any other employee. However, he may, instead of having an ordinary master and servant relationship with the Crown, hold office under the Crown and may have been appointed to that office as a result of the Crown exercising a prerogative power or, as in this case, a statutory power. If he holds such an appointment then it will almost invariably be terminable at will and may be subject to other limitations, but whatever rights the employee has will be enforceable normally by an ordinary action. Not only will it not be necessary for him to seek relief by way of judicial review, it will normally be inappropriate for him to do so."

Against that background, I turn now to consider the relief sought in the present proceedings.

The plaintiff, first, seeks a declaration that the Prison Rules are invalid and/or of no legal effect. No authority was cited by counsel for this bold proposition and the basis for the claim is not clear from either the pleadings or the submissions. It would appear, however, that the point being taken is that in the preamble to the Rules, the following words appear: "Made by the Minister of Police on 27th January, 1947" while section 5 of the Prisons Act requires the Rules to be made by the Minister of Police with the consent of Cabinet.

In the absence of a single shred of evidence to the contrary from the plaintiff, I am prepared to assume that the Prison Rules were duly made with the consent of Cabinet. In any event, section 8 of the Laws Consolidation Act precludes subsidiary legislation included in the Revised Edition from being questioned in any court.

The plaintiff, therefore, fails under this head

The plaintiff then seeks a declaration that the suspension was a nullity. The pleadings are discursive and it is difficult to ascertain from the statement of claim exactly why it is alleged that the suspension was a nullity. In written submissions, however, counsel appears to be advancing the following propositions:

1. The plaintiff was not given a copy of the report (if there was one) upon which the decision to suspend was based.
   
2. If there was no report, it means that the Minister initiated the suspension and he was, therefore, a judge in his own cause.
   
3. The plaintiff was not given a hearing before the suspension was imposed.
   
4. The suspension was without pay.
   
5. A suspension can only be imposed if guilt is first established.
   
6. The length of the term of the suspension was unreasonable.
   

The first observation I make is that the suspension now being challenged was imposed back in March 1999. How much more sense it would have made for the plaintiff to have sought a review of the Minister's decision to suspend back at the time the decision was made rather than some four years later. Be that as it may, I do not consider that there is any substance in the first three grounds advanced. The suspension was ordered to enable further inquiries to be made in relation to the allegations of misconduct. As Warrington L.J. said in Wallwork v Fielding [1922] 2 K. B. 66 (at 74):

"Suspension is a power which in the nature of things has, if it is to be of any use, to be exercised summarily. . . ."

There was no requirement for the Minister to produce documents or to give the plaintiff an oral hearing before imposing the suspension. The plaintiff was fully aware of the allegations of misconduct made against him and he was given ample opportunity to respond. That is all that the law requires in relation to a suspension pending further investigation.

In relation to points four and five, it is correct that the suspension was without pay and there is no specific reference in the Prisons Act or the Rules to suspension without pay. It also appears that the suspension envisaged in section 20 of the Act is a suspension for misconduct after guilt has been established. Section 20 of the Prisons Act reads:

"20. Subject to any rules that may be made hereunder the Minister of Police may for misconduct or inefficiency reduce any prison officer to a lower grade and may for a like reason suspend any prison officer."

The point Mr Fifita makes is that there is no specific power provided in the Act to suspend without pay while allegations of misconduct are being investigated. Counsel submits that suspension can only be imposed for a proven offence.

The same situation was before the court in the Wallwork case. There, the power given by the Municipal Corporations Act 1882 was expressed in the following terms:

"The Watch Committee, or any two justices having jurisdiction in the Borough, may at any time suspend, and the Watch Committee may at any time dismiss any Borough Constable whom they think negligent in the discharge of his duty, or otherwise unfit for the same."

There was no specific power in that provision to suspend without pay or to suspend pending an investigation but the Court of Appeal, nevertheless, held that the defendants had power to suspend pending a final decision in the matter and the power was to suspend without pay. That old authority has withstood the test of time and, in reliance upon it, I reject these heads of the plaintiff's claim.

Had it been necessary, I would also have been prepared to hold, following the Court of Appeal decision in Helu v Koloa (unreported) No 30/99 (judgment dated 21 July 2000), that, in the present case, there was an implied power to suspend without pay pending further investigations and that, given the countless disciplinary situations that might conceivably arise requiring misconduct allegations to be further investigated, it is entirely reasonable and necessary, in order to give business efficacy to the employment relationship, that such a condition should be implied.

The sixth point, relating to the term of the suspension being unreasonable, does appear to have merit. The period between the suspension date, 11 March 1999 and the final termination date, 29 August 2000, totals 535 days which, in my judgment, is a grossly excessive period for a suspension pending investigation. Referring to this delay, Miss Simiki submitted that during the suspension period, "there were negotiations and meetings between the Minister, Acting Superintendent of Prisons and the plaintiff" and she referred also to a meeting that the Minister had with the plaintiff in about February 2000 which is referred to in the statement of claim. Miss Simiki also made the point that if the plaintiff was concerned about the delay then he could have applied at any time for judicial review seeking an order for mandamus against the Minister.

Whilst that latter observation is undoubtedly correct, it is up to the Minister to justify such an excessive delay and, in my opinion, he has failed to do so. The duration of the total period of suspension was wholly beyond the bounds of what could be termed "reasonable". On the evidence disclosed in the documentation before the court, I would have thought that the period of suspension should not have exceeded three months at the very most. I suspect, in fact, that a strong case could have been advanced by the plaintiff, had he focused on the point, to show that the suspension period should not reasonably have extended beyond two months but the Minister was not cross-examined on his affidavit evidence and for the court to fix any period of less than three months would in some ways be akin to making a finding adverse to the Minister without giving him a proper opportunity to be heard. That proposition, of course, militates against the whole concept of review proceedings which are designed, inter alia, to ensure adherence to the rules of natural justice.

On the other hand, in fixing three months as a reasonable suspension period, the court is mindful of the fact that the Minister appeared to concede as much in his reinstatement offer which was framed so as to include backpay for the total period of the suspension apart from the initial three months and, in any event, his affidavit, in my opinion, would not justify any longer period. In McClory v Post Office [1993] 1 All ER 457, the court upheld a six-month period of suspension after observing that it "looks a long time in retrospect". There were special features in that case, however, which enabled the court to conclude that overall there were reasonable grounds for the continuing suspension over the complete six-month period. There are no such special features in the present case.

At the other end of the scale, for present purposes, I find that the period of suspension effectively ceased on 11 July 20000 when the plaintiff could have resumed his employment. The defendants' proposals for reinstatement are not so unreasonable as to justify the plaintiff in is refusal to return to the workforce.

I do not overlook the fact that the dismissal was said to be backdated to 11 March 1999 but, as the learned authors of Chitty on Contracts, 26 ed (at 3924) note, ". . . disciplinary suspension cannot be justified by reference to the employer's contractual right to dismiss for misconduct." The plaintiff's position must even be stronger in a case like the present where it was not a disciplinary suspension but a suspension pending further investigations and, as such, it was an implied term only, subject to the additional implied term that the suspension period would be for no more than a reasonable period of time. After that date, it would be unlawful.

No authority has been cited to me by Crown counsel to suggest that the Crown can evade liability for wages during the period of the unlawful suspension by backdating the dismissal and, indeed, no such submission was even propounded. In its statement of defence, the Crown acknowledges that the plaintiff was dismissed on 29 August 2000.

The plaintiff next seeks an injunction, "to prohibit the defendants from dismissing the plaintiff". That is the type of relief that might sensibly have been applied for at some stage during the lengthy period of suspension. It is hardly a practical remedy to be seeking some 2 1/2 years after the actual event. The injunction is declined.

The plaintiff then seeks an order of certiorari quashing the suspension and dismissal decisions. I do not propose to say anything more about the suspension decision. I have found that the suspension decision in itself was lawful but the suspension became unlawful after the initial three months.

The two points the plaintiff then appears to make in relation to the dismissal decision are: (1) that he had a legitimate expectation to remain in the prison service until his retirement and (2), he had, in any event, the right to be tried by a Court of Inquiry under section 15 of the Prisons Act. Crown counsel in response submitted that Cabinet was free to dismiss the plaintiff at any time and whether or not a Court of Inquiry should be established under section 15 was always a matter for the Minister's discretion.

Crown counsel may be correct in her analysis of section 15 of the Prisons Act. I do not find it necessary to determine the point but I note that section 19 of the Act gives the Minister the power, after full inquiry, to impose a punishment in respect of any "petty breach of discipline" or prison rules but he is given no such power in relation to more serious breaches of discipline. In that situation, I would have thought, it was at least open to argument that it is only a Court of Inquiry that has power under the Act to inquire into charges of breach of discipline against prison officers which are more serious than the "petty" matters delegated to the Minister under section 19. This is another issue which the plaintiff properly could and should have made the subject of a review application at some point during the period of his suspension.

The reason I do not consider it necessary to reach a considered conclusion on whether the matter should have been referred by the Minister to a Court of Inquiry is because I am satisfied that, in the end, his dismissal did not result from the original allegations of misconduct but from the gross insubordination he displayed in writing to the Minister in the insulting terms in which he did. I am satisfied that his conduct in this regard can properly be construed as gross misconduct warranting summary dismissal. At common law, police officers, like other civil servants, hold office during the pleasure of the Crown and are dismissible at any time without cause assigned. Halsbury 4th ed. vol 8 para 870 states:

"In the absence of special statutory provisions, all contracts of service under the Crown are terminable without notice on the part of the Crown. This is so even if there is an express term to the contrary in the contract, for the Crown cannot deprive itself of the power of dismissing a servant at will, and that power cannot be taken away by any contractual arrangement made by an executive officer or department of state."

By virtue of section 4 of the Civil Law Act (CAP. 25) the common law situation would apply in Tong only so far as no other provision had been made under any Act in force in the Kingdom. In Tuakoi v The Deputy Premier Tongan law Reports (1924-1961) vol II page 196, the Privy Council held that section 34 of the Police Act, which at the time was in identical terms to existing section 21 of the Prisons Act, did expressly provide the means by which members of the police force may be dismissed – thus excluding the operation of the common law.

Using the terminology in the Tu'akoi case, the legislature has given Cabinet "extremely wide powers by this section and a complete discretion whether to exercise its power to dismiss" a prison officer. Although the allegation is made in the statement of claim that the dismissal was inspired or carried out with "malice and ill will", I am not prepared to make that finding on the material before the court. As I have already indicated, the recommendation to Cabinet and the Cabinet decision that the plaintiff be dismissed was virtually the inevitable reaction and response following on from the plaintiff's gross misconduct in writing to the Minister in the terms in which he did.

For these reasons, I reject the claims made by the plaintiff in relation to his dismissal.

Finally, the plaintiff claims damages under various heads. As formulated in the statement of claim, they read:

1. Loss of pay $6,600.00
   
2. Pension pay $12 776.49.
   
3. Promotions $1,000.00
   
4. Reputation $20,000.00
   
5. Job security $10,000.00
   
6. Mental anguish, distress, anxiety and inconveniences $10,000.00
   
7. Financial hardship $5,000.00
   
8. Aggravated damages $30,000.00
   
9. Exemplary damages $20,000.00
   

The judicial review procedure provides that in appropriate cases a claim for damages in private law can be made alongside a public law claim for a prerogative remedy. The reality, however, is that any type of damages claim is usually going to be keenly contested by a defendant and it will be a rare case indeed where the Court will consider it appropriate to make an award of general damages in private law on the basis of untested affidavit evidence alone.

For the reasons stated, I do not consider that a proper basis has been established for an award of exemplans or aggravated damages. In any event, aggravated damages come under the head of "general damages" and they should not be pleaded as a separate category. The same goes for the items claimed in iii to vii. They are not recognised separate heads of claim. The "pension pay" claim, which, if sound, should have been claimed as an item of special damages, is touched upon in one of the affidavits. It appears to be based on the plaintiff continuing in employment until the age of 60. It has not been proven to my satisfaction.

The plaintiff, therefore, succeeds on one aspect of his claim only and he is entitled to be awarded the salary he lost during the period of his unlawful suspension, which was the period beyond the initial first three months. He pleads that at the time of his dismissal, his salary was $4646 per annum. That figure is admitted by the Crown. The plaintiff also pleaded that, had it not been for his suspension and dismissal, his salary would have been $6983. He did not give any dates, however, as to when this increase would have taken effect. The claim is denied in the statement of defence and the plaintiff has not dealt with it anywhere in his affidavits. For those reasons, I am not prepared to accept the higher figure and my calculations are, therefore, based on the admitted salary figure of $4646 per annum.

Three months from the date of suspension would mean that the plaintiff is entitled to recover his salary for the period between 11 June 1999 and 11 July 2000, which in monetary terms, on my calculations, equates to approximately $5030. There is a suggestion in some of the correspondence that the plaintiff may have lost out on certain "staff promotions" during his period of suspension but, whatever form they took, they have not been pleaded or proven.

No issue was taken over what party was the correct defendant. Counsel has referred to them simply as the defendants, as have I in this judgment. Effectively the defendant is the Crown. There will, therefore, be a declaration that the plaintiff's suspension as from 11 June 1999 until 11 July 2000 was unlawful and he is awarded damages for loss of salary during that period in the sum of $5030. He also seeks interest at 10 percent and I am prepared to make such an award but only as from the date of issuance of the writ. The plaintiff is entitled to costs but, having regard to the end result and the modest amount recovered in relation to the claim, I award costs to be agreed or failing agreement, at three-quarters of the figure allowed on taxation.

NUKU'ALOFA: 28 April, 2003

JUDGE