The Supreme Court of Tonga has ruled that the Minister of Tourism and Infrastructure Hon. Semisi Sika acted mistakenly and unlawfully when he terminated the appointments of five Board directors of the Tonga Tourism Authority on 17 June this year.

The five TTA board directors were Tomifa Paea, Simana Kami, Finau Uata and Kisione Pakalani. All five were the plaintiffs in the case. 

They argued that the Ministers' actions were unlawful because they had not yet completed the 3-year term which had been conditioned to them by Hon. Etuate Lavulavu (the then Minister of Tourism and Infrastructure) when they were appointed as directors to the Board of the Tonga Tourism Authority last year. 

The Minister's defence was that the plaintiffs had been appointed to replace former directors who had vacated their positions, and that the plaintiff's appointments were to expire after the remainder of the term for those vacating directors.  The Minister stated that this was in accordance to regulations set out by the Tonga Tourism Authority Act 2012.

The court ruling revealed that the plaintiffs were appointed last October 2015 by the then Minister of Tourism and Infrastructure Hon. 'Etuate Lavulavu. The appointments came months after three board directors vacated their positions (Shane Walker, Ross Chapman and Paul Johansson).

The ruling revealed a letter sent by Hon. Lavulavu to plaintiff Tomifa Paea before his appointment. The letter stated "Your appointment, as Chairman/Director, will be for a term of up to three (3) years and to be effective from the date of the CD, 2 October 2015..."

The ruling also revealed a notice of completion sent to the plaintiffs by Hon. Semisi Sika on 17 June. The notice stated "I write to thank you for your contributions over the past year as a Director of the Tonga Tourism Authority Board. As you are aware, you were appointed by Cabinet 2 October 2015, subject to Section 9 of the Tonga Tourism Authority Act 2012."

"Your appointment replaced another resigned Director. Section 9(10) of the Act applies whereby your appointment is for the remainder of the term for which the vacating Director was appointed. The term of the original Directors has been duly completed. As such, effective today your appointment as a Director of the Tonga Tourism Authority is ended."

"I understand that former Minister Lavulavu wroter to you on your appointment stating it would be for a term of up to three (3) years, but we must follow what the Act states."

Mistake

In his ruling of December 20, Lord Chief Justice Paulsen, concluded that, "The Minister has made fundamental mistakes. He was mistaken in his belief that all the plaintiffs were replacements for retiring directors. He was mistaken when he considered that all the plaintiffs' engagements had expired. He is not now able to satisfy the court that the appointment of any plaintiff had expired. The Minister was therefore also wrong when he advised the plaintiffs that their appointments were at an end and required them to vacate the Authority's premises.

"It does not matter whether the Minister's mistakes are regarded as being of law or fact. The making of an error of law is one of the established grounds of judicial review and what a plaintiff must establish is that an error was made and that it was material in the sense that it influenced the outcome of any decision under review."

"I make a declaration that the Minister acted mistakenly and unlawfully when on or around 17 June 2016 he advised the plaintiffs that their appointments on the Board of the Authority were at an end."

Lord Chief Justice Paulsen said he would reserve his decision on what relief should be granted to plaintiffs for a further hearing. 

The Counsel for the plaintiffs was Mrs P. Tupou. Mr S. Sisifa SC represented the defendant.