Fonua v Tonga Communications Corporation Ltd [2004] TOSC 35; C 0692 2001 (28 June 2004)

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

NO. CV. 692/2001

BETWEEN:

SIOSAIA H. FONUA
Plaintiff

AND:

TONGA COMMUNICATIONS CORPORATION LIMITED
Defendant

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr. Niu for plaintiff
Mr. Tu’utafaiva for defendant

Date of Ruling: 28th June, 2004.

RULING

Having allowed a number of adjournments and opportunities to the parties to provide information about the pension scheme, the court is still left with virtually to assistance apart from the evidence of the plaintiff. As a result I shall make my final order.

I have accepted, and the defendant does not now dispute, that there is or was some form of pension scheme. The evidence of the plaintiff is that it followed the scheme for Government pensions under the Pensions Act, Cap 8. In the absence of any further information from the defendant, I order that the plaintiff is entitled to a pension under the same terms as a Government pension paid according to the provisions of the Pensions Act and any regulations thereunder.

The only challenge by the defendant has been based on the interpretation of section 6 of the Act which it is suggested shows the plaintiff has lost his right under the scheme. As far as it is relevant, that section provides:

"6. Except in cases of abolition or reorganization of office no pension, gratuity or other allowance shall be granted to any public officer who has not attained the age of 50 years unless on medical evidence to the satisfaction of the Privy Council that he is incapable by reason of infirmity of mind or body or discharging the duties of his office and that such infirmity is likely to be permanent."

Counsel for the defendant argues that the words in italics mean that any person who retires before he attains 50 years cannot receive a pension at all. If that is correct, the plaintiff by resigning 13 month early lost all pension rights accrued over his approximately 28 years of service.

I cannot accept that interpretation. The plaintiff resigned on 29 July 1999 when he was close to his 49th birthday. Clearly he was not entitled to be paid a pension then and he was not able to add any further increments after that but he was entitled to be paid the pension at that rate when he reached his 50th birthday on 8 August, 2000.

I order that the defendant shall calculate the plaintiff’s pension in accordance with the terms given to government officers according to the provisions of the Pensions Act. The calculation shall be based on the salary the plaintiff was receiving at the date of his resignation and shall be subject to any increase in the same manner and at the same rate as a government pension. That calculation shall be completed and filed with the court within 28 days to be incorporated as part of this judgment.

The plaintiff has advised the court that he does not wish to take the option under the Act of a lump sum payment of five years pension. The defendant shall pay the plaintiff the arrears of pension from the date of his 50th birthday to the date of payment with interest at 10% per annum. The pension shall then continue to be paid in accordance with the present policy for Government pensions.

I have already rejected the plaintiff’s claim that he would automatically have been appointed, or even that he had a reasonable expectation of appointment, to the position of General Manager. That accounted for a very substantial part of the claim. My finding that the plaintiff resigned voluntarily also defeats his claim that he has been deprived of the opportunity to work until he attained 60 years.

In those circumstances, I order that the defendant shall pay the plaintiff one half of his costs to be taxed if not agreed save for those costs already the subject of an order of the court earlier if these proceedings.

NUKU’ALOFA: 28 JUNE, 2004.

CHIEF JUSTICE