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

NO. C. 677/2001

BETWEEN:

VA TOAFA & TEVITA TOAFA
Plaintiff

AND:

1. MA'U FIFITA
2. TRANSAM SHIPPING TONGA LTD.
Defendants

BEFORE THE HON JUSTICE FORD

Counsel: Mr Fakahua for the plaintiff and Mr Foliaki for the defendant.

Dates of hearing: 6,7, 24 March 2003.
Dates of written submissions: 14, 29 April and 14 May 2003.
Date of judgment: 23 May 2003.

JUDGMENT

At the end of July 2001, the plaintiffs, Va and Tevita Toafa, shipped a cargo of two bins of swamp taro and seven bins of yam from Nuku'alofa to Auckland, New Zealand, on the Southern Cross II. The consignment was not released to the plaintiffs in Auckland until Tuesday 14 August by which time much of the produce had deteriorated and was in a rotten state. The plaintiffs bring this action against the defendants claiming damages totalling $4,942.00 in respect of their alleged financial loss.

The defendants deny liability and claim that the plaintiffs are suing the wrong people. They allege that the produce was shipped to New Zealand, not by Transam Shipping, but by a person called 'Aisea To'a who traded under the name, "Lamanite Pacific Service" or "Lamanite Pacific Freight". They allege that the plaintiffs should be bringing their action against Mr To'a but the latter has never been joined in the proceedings either as a defendant or as a third party. 'Aisea was, however, called as a witness on behalf of the defendants.

The second named plaintiff, Tevita Toafa, is the deputy manager of the Friendly Island Marketing Co-op. He told the court that in July 2001, in his private capacity, he wished to send a shipment of sundry produce to New Zealand for marketing. His wife Va, the first named plaintiff, was to fly to Auckland to collect the consignment upon its arrival and arrange for its marketing and distribution.

Tevita was proposing to send his produce to New Zealand towards the end of July and so around the middle of the month, he began making inquiries amongst the shipping companies. The Forum Line told him that they had a vessel departing during the second week in August. On 19 July, after telephoning the second defendant which is another shipping company, Tevita had a meeting with Ma'u Fifita, the first defendant, who is Transam's Operation Manager. He met with him in the Transam office. 

Tevita told the court in evidence in chief that he spoke to Ma'u about three specific matters. First, he wanted clarification as to how long it would take his company's vessel to travel from Nuku'alofa to Auckland. The reason for this inquiry was that he had apparently experienced problems previously with produce deteriorating during shipment. He was told that the voyage would take four or five days. Tevita then inquired as to whether the company had insurance cover over goods in transit and whether he could claim the value of any damaged produce. Ma'u confirmed that the consignment would be covered by insurance. Finally, Tevita asked when the first ship would be leaving for New Zealand and Ma'u told him that the Southern Cross II was due to depart on 28 July. Later in cross-examination when Tevita again referred to the three points, he listed them as, (1) How many days will the voyage take? (2) Can you take loose bins? (3) If my produce is damaged, can I make a claim?

The 28 July departure date suited the plaintiffs. The court was told that the ship did not, in fact, leave Nuku'alofa until 30 or 31 July 2001.

On 24 July, Tevita contacted Ma'u again to check out the arrangements so that he could start preparing his goods. Ma'u confirmed that the ship would depart on the 28th and he told him to prepare the goods and bring them onto the wharf on the 27th. Tevita did so and on Friday 27 July he delivered seven squash bins of yam and two squash bins of swamp taro down to the wharf.

Tevita said that Ma'u showed him where to unload the bins at the wharf and on the letterhead of the second defendant, Ma'u had written down the quantity of bins so that he (Tevita) could then go to Customs and Quarantine and complete the export documentation. Ma'u told him that he would send the documentation to New Zealand and he also told Tevita that the payment for freight could be made in New Zealand.

Tevita's wife, Va, then flew to Auckland to await the arrival of the Southern Cross. She called Tevita after ten days and told him that the ship had not arrived. Tevita contacted Ma'u and asked him why the ship was late. He was told that it was a little late but it would soon arrive in Auckland and the produce would not be damaged. Exactly when the vessel did arrive in Auckland was not disclosed in evidence but Tevita said that after 14 or 15 days, Va called him again and told him that she had gone to the place where Ma'u had indicated the goods would be and they were not there but someone else (who was not named) had told her that the produce was with a firm in South Auckland called "King Taro" and when Va had gone out to King Taro's warehouse she had found that all of the taro and half of the yam had deteriorated and was rotten. Tevita said that King Taro gave his wife a letter confirming the extent of the damage.

The letter in question, dated 15 August 2001, was produced by the plaintiff. It is significant in that it makes no mention of Transam Shipping. The letter from Nielsen Peterson, Managing Director of King Taro, Otahuhu, Auckland, is addressed to "'Aisea To'a, Lamanite Pacific Service". It reads:

"SUBJECT: Damaged Goods
Marks: Va Tukutau Toafa Cert. No 1413.

Dear 'Aisea,

This is to advise you that the two crates of taro for the above consignee was (sic) inspected by us on arrival.

We regret to confirm that the condition of the above two boxes were damaged due to heat and the length of time taken to reach us. We recommend compensation if arrangement was made from your end.

The complain (sic) was brought to our attention by Mr Maulupe Sale and immediate action was taken for inspection by myself.

Yours faithfully,
Nielsen Peterson
Managing Director."

The court was told that the "Maulupe Sale" referred to in the letter was the truck driver who delivered the consignment from the wharf to King Taro.

Tevita was asked in evidence in chief as to his understanding of the letter. He said that he had asked his wife to obtain the letter and bring it back to Tonga as evidence for a claim he intended to make against Transam Shipping. The witness was then asked what connection 'Aisea To'a (the person to whom the letter is addressed) had with the matter and whether he knew him or had met him in Tonga. Tevita said he understood from Ma'u that 'Aisea To'a was the person his wife would have to collect the produce from when it arrived in Auckland but he (Tevita) had never met him or had any dealings with him prior to when the shipment left Nuku'alofa.

In cross-examination, Tevita was challenged on this part of his evidence and it was put to him that he had, in fact, met 'Aisea and his employee, Seteone 'Anitema, and it was Seteone who had helped complete the documentation to enable 'Aisea's company to ship the produce to New Zealand. Expanding on the proposition, Mr Foliaki put it to Tevita that what had really happened was that once Ma'u had become aware that the plaintiffs did not have a sufficient quantity of produce to make up a complete container (apparently 20 bins), he explained to Tevita that Transam Shipping only dealt with containers and did not handle loose bins. But then, as a favour to Tevita, Ma'u introduced him to 'Aisea's company which was one of only two firms in Nuku'alofa at the time that dealt with the export of loose bins of produce to New Zealand. 

'Aisea, through his "Lamanite" company accepted loose bins from exporters and made them up into containerloads. Once he had sufficient bins, he would hire a container either from Transam or Dateline Shipping and the product would be exported to New Zealand through one or other of those companies. In the instant case, the defendants contended that 'Aisea had shipped his containers through Dateline Shipping.

Mr Foliaki, very properly, put this whole scenario to Tevita in cross-examination but he denied having had any involvement whatsoever with 'Aisea or his employee, Seteone, prior to when the produce left Tonga. He was adamant that the shipper was Transam and that at all material times he was dealing with Ma'u as Transam's representative.

Tevita's wife, Va, told the court that when she went to the wharf in Auckland to inquire about the consignment she was told to contact Mr Peterson of King Taro. She did so and on 14 August she paid Mr Peterson the freight costs and the bins were released to her. When she saw the damaged state of the produce, she contacted her husband and he told her to go back to Mr Peterson and get a statement from him in relation to the damage which could be used as the basis for a court case. That, according to Va, was how the letter referred to earlier dated 15 August 2001 had come into existence.

Va said that Mr Peterson had told her that it was 'Aisea To'a who had given him the produce and he had told her that she needed to contact him about the damage but he had apparently already returned to Tonga. Va said that she had never met 'Aisea and she did not know who he was.

Rather strangely perhaps, although Va took Mr Peterson's letter back with her to Tonga when she returned in September 2001, she admitted in cross-examination that she had not shown it to her husband until he asked her to look for it only the week before the court case began in March 2003. It had not been made available to the defendants on discovery. Va was asked whether she had ever told her husband about the letter. She said that she had and that she had mentioned to him that 'Aisea's name appeared in the letter from Mr Peterson but, for some reason which was not explored in evidence, she had never actually shown the letter to her husband.

'Aisea To'a was called as a witness for the defendants. In March 1999 he began his own business shipping cargo between Tonga and New Zealand. Prior to that he had worked for Forum Shipping for a period and he had also spent some seven years working for the Customs Department. 'Aisea operated his business from an office in his home. He traded under the name Lamanites Pacific Freight. Seteone 'Anitema worked for him and he was based at the company's depot on the wharf at Nuku'alofa. 'Aisea would normally travel to New Zealand and uplift each consignment upon the vessel's arrival. Mr Peterson of King Taro was his shipping agent in New Zealand. Mr Peterson also operated under the trade name, "Desiree Pacific Freight" (or "Trade").

'Aisea said that he had an arrangement with the first defendant, Ma'u, under which Ma'u would help him out by referring customers to his company who wanted to export loose bins of produce to New Zealand. For helping him out in this way, he would give Ma'u $1 per sack of produce and $10 per bin. He said that Ma'u did not receive any payment for the shipment in question. In cross-examination, 'Aisea said that he did not think that the management of Transam were aware of the arrangement he had made with Ma'u.

'Aisea told the court that he recalled how Ma'u had introduced the plaintiff, Tevita, to him and how Tevita had called at his office to see him about shipping the consignment of yams and taro to New Zealand. He said that initially Tevita told him that he was shipping only four bins but later he found out that there were nine. 'Aisea explained how he had received enough loose bins from various customers to make up two containers for the voyage in question although one of the containers was only 60 percent full. The plaintiffs' produce was included in that consignment. 'Aisea identified the bill of lading produced by the defendants as the bill of lading relating to the plaintiffs' consignment. The bill identified the two containers of mixed produce. The shipper is named as, "Lamanites Pacific Freight" -- the consignee as "Desiree Pacific Trade, 731 Great South Road, Otahuhu, Auckland". 'Aisea quite frankly acknowledged that he was the shipper, that the produce had deteriorated and that he was responsible for the damage.

Apparently, the reason for the deterioration was that after the containers had been off-loaded in Auckland, Customs officials refused to allow them to leave the wharf area until certain quarantine documentation had been received from Tonga. Normally, the documentation would have arrived with the shipment but in this case, due to carelessness or oversight on the part of 'Aisea's employee, Seteone 'Anitema, the documents were delayed in Tonga for an excessive period.

'Aisea said that he met Va Toafa in New Zealand when she was waiting for the release of the cargo. He said that they talked at King Taro's warehouse and she had expressed her disappointment to him over the delay. Shortly after that meeting, 'Aisea had to return to Tonga for a court case he was involved in. 'Aisea indicated that he had accepted and settled up claims made by other people whose produce had suffered damage but he had not settled with the plaintiffs. He recalled Mr Peterson faxing him the "King Taro letter" on 15 August 2001 and he recalled Tevita subsequently visiting him at his home and discussing another letter from the plaintiffs' counsel, Mr Fakahua, dated 27 August 2001, making a claim against Transam. The letter had been copied to 'Aisea.

'Aisea did not attempt to deny liability for the damage caused to the plaintiffs' produce. In a rather dramatic exchange in cross-examination, he retorted: "Blame me. It was I who took the goods." 'Aisea said that he had been prepared to negotiate a settlement with the plaintiffs but he had difficulty reconciling the claim as formulated in Mr Fakahua's letter of 27 August with the damage as he understood it and he wanted more information from his agent in New Zealand. In other words, although he did not say so expressly, he obviously suspected that the claim had been inflated because it included damage to the bins of yam, whereas the King Taro letter had only mentioned damage to the two bins of taro. 'Aisea said that his willingness to negotiate a compromise with the plaintiffs changed after they criticised his company publicly in an article in the Taimi 'o Tonga newspaper. I will come back to that.

The first defendant, Ma'u Fifita, is the Operations Manager for Transam Shipping. He said in evidence that he recalled Tevita Toafa coming to his office on about 19 July 2001 and asking when the next ship was leaving for New Zealand. He understood that Tevita had a container load of cargo to ship. He told him to bring the produce to the wharf on the 28th so that it could be loaded on 29 July and, in the meantime, he arranged to have a container available and left at the wharf for his use. (I am satisfied from other evidence that Ma'u was genuinely confused over the dates because the 29th of July was a Sunday and nothing would have happened that day. The actual date of the visit was, therefore, the 27th of July and that is the date I will use for the rest of this judgment). Ma'u said that when Tevita returned on the 27th, he told him that he had changed his mind and he now had only nine bins instead of a container load. Ma'u explained to him that Transam only dealt with containers and did not ship loose bins but he told him that he knew two agents who were in the business of exporting loose bins to New Zealand and he should use one of them for his consignment. As a favour, he then took Tevita to the wharf and introduced him to Seteone 'Anitema, the representative for one of the agents, 'Aisea To'a. Ma'u said that he explained to Tevita that after he and Seteone had completed the documentation he would need to take his cargo to quarantine for inspection and then to Customs. He left the papers with him and Seteone and he (Ma'u) returned to his office.

Later that same day, Tevita came back to Ma'u's office and asked how he was to pay the freight. Ma'u explained that he would need to see 'Aisea To'a about the freight. He gave him instructions as to how to find 'Aisea's house and he told him to go and arrange with 'Aisea payment for the freight and ask anything else he wished to know about 'Aisea's company. So far as Ma'u was aware, Tevita did go and see 'Aisea. Ma'u said that Tevita clearly understood that his produce was being shipped to New Zealand, not by Transam, but by 'Aisea's company.

Ma'u recalled being approached by Tevita some ten days after the vessel had left Nuku'alofa and being told that his wife had informed him that the cargo had been lost. At that stage 'Aisea was in New Zealand. He told Tevita to tell his wife to contact 'Aisea in Auckland because the cargo could not have been lost. Ma'u told the court that the following day Tevita contacted him again and said that his wife had received the cargo but it was damaged and she had gone to speak to 'Aisea about the damage but he had already left for Tonga. Ma'u told Tevita to prepare a claim in respect of the damage and hand it to 'Aisea's representative in New Zealand.

In cross-examination, Ma'u was asked whether Transam management would have been aware that he did a "double deal". He answered in the negative but he explained that he only referred people to one or other of the two local agents who exported loose bins because he wanted to help them. He did not see any conflict because his company only dealt with containers and did not handle loose bins. Ma'u denied having any arrangement with 'Aisea whereby he received payment for referring customers to him.

The defendants also called Fine Tohi the Shipping Operations Manager for Dateline Shipping. Mr Tohi told the court that the Southern Cross II is owned by a Greek company but the vessel is jointly chartered by Pacific Direct Line and Reef Shipping. Dateline act as agents for Reef Shipping while Transam act as agents for Pacific Direct. There is considerable cooperation between the two agencies, however, only one of the firms acts as port agent for the Southern Cross at any one particular port. Transam, for example, is the port agent at Nuku'alofa whereas Reef Shipping is the port agent at Vava'u. The port agent is responsible for arranging berthing and generally looking after the vessel during its stay in the particular port.

Towards the end of the evidence, leave was given by the court for the plaintiffs to be recalled. Tevita was asked about Ma'u's assertion that initially he had proposed to send a container load of product to New Zealand. Tevita strongly denied the allegation. He said that when he first saw Ma'u he told him that he wanted to send about four or six bins but when he saw him again on 24 July he told him that he might have eight or nine bins. He said that Ma'u was lying when he said that he had introduced him to Seteone and he reaffirmed that he had no knowledge that 'Aisea was involved in any way with the shipment of his cargo to New Zealand.

On balance I have not been persuaded that Tevita did specifically mention "four to six bins" when he first spoke to Ma'u. Although he said in cross-examination that one of the three matters he specifically sought an assurance on from Ma'u when he first saw him, was whether his company could take loose bins of produce, I simply did not accept that evidence. For one thing, it is not one of the three points alleged in the statement of claim to have been raised at that point in time, nor is it one of the three points Tevita identified in his evidence in chief. Furthermore, there was no other indication in his evidence in chief that Tevita mentioned loose bins at his first meeting with Ma'u. All he said at that stage (according to the transcript of evidence) was: "On 19 July I called Transam Shipping to inquire how I go about shipping sundry produce from Tonga for marketing in New Zealand." He may not have mentioned a container load but I am satisfied that that is what Ma'u originally thought that they were talking about. 

A plausible explanation for the conflict in this part of the evidence is that Ma'u, of course, knew that his company only dealt with containers and he may have made an assumption that Tevita, given his position as deputy manager of the Friendly Island Marketing Co-op would have been aware of this fact and would not have approached him in the first place unless he was contemplating sending a whole container. For his part, Tevita may be confusing the conversation 'Aisea told the court about, where, according to 'Aisea, Tevita told him that he had only four bins and later changed his mind and told him that he had nine. This explanation was not raised by, or put to, the witnesses but it can be supported on the evidence before the court.

Leave was also granted for Va Toafa to be recalled to answer allegations that had not been put to her in cross-examination, namely, that she had met 'Aisea in New Zealand at King Taro's warehouse and that she had publicly criticised his company in the Taimi 'o Tonga. Although leave was granted, Va did not return to the witness box.

It became evident early on that there was a sharp conflict in some of the evidence before the court and that credibility was going to be a major issue in the case. As it turns out, the court is not satisfied that any of the principal parties were being completely truthful throughout. There were times during some quite searching cross-examination, when the answers given by the witnesses lacked credibility.

Perhaps the sharpest conflict in the evidence related to the involvement of 'Aisea To'a. The case for the defendants was that it was 'Aisea who shipped the plaintiffs' goods to New Zealand whereas the plaintiffs denied having any knowledge of 'Aisea before the goods left Tonga. Va Toafa also denied meeting 'Aisea or having any knowledge of him in New Zealand, apart from the fact that his name was mentioned in the King Taro letter of 15 August 2001.

In his written submissions, Mr Foliaki placed particular reliance on two of the exhibits which, in his view, put lie to the plaintiffs' claim that they had no prior knowledge of any involvement by 'Aisea in the shipment of their produce. The first was the plaintiffs' original letter of claim written by their counsel, Mr Fakahua, to Transam on 27 August 2001. The letter is written in English. The first two paragraphs read as follows:

"General Manager

Transam Shipping Tonga Limited

Fakafanua Centre

Ma'ufanga

Dear Madam,

Re: nine bins of Sundry Produce of Mrs Va Tevita Toafa.

I have been instructed by the above named person in respect of her above-mentioned sundry produce which were taken by your company on MV Southern Cross on 31/07/2001,Nuku'alofa/Auckland.

Your employee namely Ma'u Fifita directed her to one 'Aisea To'a and gave all her sundry produce to prepare all shipping documents and forward the same to New Zealand. The sundry produce was agreed with your company to be collected the freight in New Zealand. Va just discovered that 'Aisea To'a is not your employee on her arrival in New Zealand and 'Aisea just disappeared when the sundry produce were found damages (sic) . . . ."

(emphasis added)

The letter then goes on to itemise the claim.

When asked about the letter, Tevita Toafa said that the reference to his wife, Va, is an error on his counsel's part because it was he (Tevita) who arranged the shipment, not his wife but the witness was unable to satisfactorily explain the passage highlighted which, on the face of it, lends direct support to the defendants' assertion that it was 'Aisea To'a who shipped the produce to New Zealand.

At the end of his case, the court asked Mr Fakahua whether he was proposing to call any evidence about the letter and, in particular, the sentence highlighted. Counsel responded that that was not possible because he had written the letter. That perhaps shows why it is unwise for counsel to act in a case where he might be required to give evidence. The end result is that the Court has simply been given no other plausible explanation for the sentence, if it does not mean what the defendant contends.

In his submissions, Mr Foliaki highlighted the sentence in question and his submission called for a response. In his submissions in response, Mr Fakahua did not deny that the plaintiff had been directed to 'Aisea To'a who prepared the shipping documents and sent the produce to New Zealand (as alleged in the sentence) but he contended that "whatever Ma'u Fifita did was in his capacity as an employee" of the second defendant. The important point, however, is that the plaintiffs vehemently denied having any knowledge of 'Aisea before the produce left Tonga and yet, in this exhibit, their counsel acknowledged that 'Aisea had been very much involved in the whole transaction.

The position may have been clarified if the court had been able to hear evidence from Seteone 'Anitema who, on the defendants' account, had, obviously, been intimately involved in preparing the necessary documentation but he was not called by the defendants. The court was told that he no longer works for 'Aisea. There was nothing, however, preventing the plaintiffs from calling Seteone in rebuttal even had it been necessary to subpoena him. After all, the onus is on the plaintiffs, not the defendants, to prove the case they seek to establish and the court was given no explanation as to why Seteone could not have been called to give evidence.

The second exhibit defence counsel places reliance upon is the story which appeared in the Taimi 'o Tonga dated 17 August 2001. The article is headed "News from New Zealand -- Grumbling over their rotten cargo of food produce." The article is a lengthy one which took up virtually the whole of page 3 of the newspaper. It included a photograph of Va Toafa showing rotten swamp taro in one of her bins of taro. The following extracts are taken from the article:

"It was like a tin-full of crabs when some poor Tongan people in the South Market at Otahuhu were in uproar on Tuesday morning when they saw the opening up of a container that contained their food produce shipped over from Tonga to find that most of their food produce had become rotten . . . .

This container was brought by a man who is a container shipping agent from Tonga named 'Aisea To'a. 'Aisea has his own company known as Lamanite Pacific Freight and he works together from Tonga with a man named Seteone 'Anitema . . . .

According to a statement by Va Toafa, who works in the Department of Agriculture in Tonga and who has some food produce which were brought in the container that got rotten, the condition of the yams now is that if they are not used up by the end of this week then they could not be used at all for consumption . . . ."

One aspect of people's grumbling (discontent) is that who would bear the great damage occurred to their cargoes."

I find it significant that, although leave was granted by the court for Va to be recalled specifically to comment on the Taimi 'o Tonga article and the evidence given by 'Aisea that he had met her in Auckland, she did not reappear.

I found 'Aisea to be a credible witness. He was obviously extremely upset over the whole matter and he is no longer in the export business. I am satisfied that his evidence about the Taimi 'o Tonga article came as a suprise to Mr Foliaki. Counsel was obviously unaware of the existence of the article and the evidence emerged almost in passing but after 'Aisea identified the newspaper, arrangements were made to obtain the edition in question from the Liahona school library.

Although she was not recalled to give further evidence in the case, it was apparent to the court that Va Toafa was far from comfortable when she originally appeared in the witness box. Her failure to answer the new evidence introduced through 'Aisea To'a considerably weakened the plaintiffs' case and cast doubts on the veracity of Va's earlier evidence. Coupled with this was Va's failure make discovery to the defendants of the King Taro letter of 15 August 2001 and her evidence that she did not disclose it to either her husband or her counsel until one week before trial even though the evidence was that it had been obtained specifically for the purpose of supporting the plaintiffs' damages claim in a court action. Commenting upon this aspect of the evidence and the failure of the plaintiffs to discover the letter, Mr Foliaki made the following submission:

"It is obvious that if the letter was given to 'Aisea To'a, he would dispute the plaintiffs' claim of any damaged or lost yam and that the amount of their claim would accordingly be reduced. Furthermore, 'Aisea might not be able potentially to pay the claim due to other claims against him for damaged produce of different other people in the same container. So it was convenient for the plaintiff Va Toafa to say that she did not give the letter to her husband. It was also most desirable and convenient for both plaintiffs to keep the letter and that it should not be given to 'Aisea or the defendants."

In my view, there is some substance in that submission. The evidence from 'Aisea, of course, was that he had seen the letter because Mr Peterson had faxed it to him and that, no doubt, was the reason he was having difficulty reconciling the claims made subsequently by Mr Fakahua for damage and stolen produce (taro and yam) when compared with Mr Peterson's letter which referred only to damage to two bins of taro.

At the end of the day, the onus is on the plaintiffs to prove their case on the balance of probabilities. After considering carefully all the evidence before the court, I find that the bottom line, quite simply, is that the plaintiffs have not been able to persuade me to the required standard of proof in civil cases that their claim should be upheld. There are too many doubts arising from the evidence for me to be able to conclude on balance that the plaintiffs had a contract of carriage with the second defendant and I am not satisfied that any separate claim has been made out against the first defendant. In saying that I do not condone the first defendant's conduct. He was unwise to have entered into the arrangement he did with 'Aisea. I am satisfied, however, that the plaintiff's were made aware that, because Transaam did not handle loose bins, they would have to arrange the shipment through one or other of the two firms that operated in that area and on this occasion they were content to deal with 'Aisea To'a.

The plaintiffs, therefore, fail in their claim. The defendants are entitled to costs but as the first defendant effectively represented both himself and the second defendant and no other witness was called from the second defendant, only the one award of costs is made in favour of the first defendant.

NUKU'ALOFA: 23 MAY 2003.

JUDGE