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Seluini v Faletau [1996] TongaLawRp 3; [1996] Tonga LR 47 (20 February 1996)

[1996] Tonga LR 47

IN THE SUPREME COURT OF TONGA

SELUINI

V

FALETAU & TRIDENT HEAVY ENGINEERING

Supreme Court, Nuku'alofa
C. 1020/95

Hampton CJ
19 & 20 February 1996

Contract - uncertainty - enforceable or not Defamation - statements - in Court - privilege Injunction - misleading court - discharge

The plaintiff sued the defendant alleging a breach of contract over a shipment of paint. The defendants counter claimed for defamation.

Held:

1. On the plaintiffs own evidence there was a considerable degree of uncertainty, lack of clarity, lack of precise definition as to what it was that the plaintiff alleged was contained within, and the subject of, the contract.
   
2. There was not sufficient certainty in any of the discussions of the parties to enable the court to spell out what the contract was. And even if a contract was found, it would be so uncertain as to be unenforceable. On the evidence the court could not find a contract had been formed.
   
3. The plaintiff had misled the court quite markedly when he sought and obtained interim injunction, and later had its terms varied.
   
4. The claim should be dismissed, and the injunction discharged.
   
5. The counterclaim was in defamation, but it could not succeed because the alleged defamation was founded on what had been said in the court, and that must be privileged. There was no evidence called as to loss or damage. The counterclaim was dismissed.
   

Counsel for plaintiff: Mr W Edwards
Counsel for defendants: Mr Talanoa

JUDGMENT

I have listened carefully to all the evidence which has been given, and I have regard to all that evidence and to all the exhibits which have been produced, and there are a considerable number of them.

I took the option the other night to refresh my memory as to the exhibits and go through them all, and to look through the notes that I had taken of the first day's hearing. I have listened with care to the submissions just made and if I do not deal with all the submissions that have been made to me in the course of this judgment, that is not a reflection on the submission. It is a reflection on the fact that I am giving an oral judgment now because of the importance of the matter to all the parties and the significance of a container of paints sitting on the wharf at Queen Salote, something waiting to be done to it.

I also add as a general comment that I can only judge the matter on the evidence which is placed before me, making that comment, in the light of two aspects. The first: it seems to me that some of the documents which have been presented are not necessarily all that relevant but a lot of others that have been mentioned may well have been more relevant but have not been produced. I will deal with some of those as I go along and that touches on both sides I believe. The second aspect being that I have not heard any evidence from Taubmans in Fiji, whether from Mr Martin or otherwise, which may have cast some light into some of the murky waters.

I say at the start, that this is not an action for wrongful dismissal, that is the dismissal of the plaintiff, from the employment of the second defendant. The second defendant alleges or claims that the plaintiff was employed by the Company as Manager of the Paint Division. And the second defendant says that he, the plaintiff, was dismissed from that employment at the end of November 1995.

The claim is an action for breach of contract in effect. The plaintiff says that there was a verbal contractor arrangement between him and the defendants; (the first defendant named being the Managing Director of the second defendant) as to the importing, mixing, and intended distribution and sale of a container of paints purchased from Taubmans in Fiji. It is just one container of paint, that came on the Forum Samoa - some $32,36.03 of paint - which is the subject of these proceedings. And it is the shipment that arrived on the Forum Samoa from Fiji, Voyage No 257, as is referred to in the various documentary exhibits, particularly the Bills of Lading and the Invoices that have been produced.

The plaintiff alleges a contract. The defendants deny such. The plaintiff in general terms says that there was a contract between him and the second defendant and that in effect the importing of this container of paint was to be a joint venture between him and the second defendant. The defendants on the other hand say that that is not the case, there was no such contract. The only contract was that the defendants were going to import this themselves (this container of paint) from Taubmans and set up a Paint Division and employ the plaintiff as the Manager of that Paint Division.

On the balance of probabilities the plaintiff has to establish there was a contract such as he alleges. I turn to his brief of evidence itself, and that was put in, in written form. I look at that brief of evidence and when I look at it I find that, as I will come to it, there is contained within that brief of evidence itself a considerable degree of uncertainty, lack of clarity, lack of precise .definition as to what it was that the plaintiff alleges was contained within, and the subject of, this contract.

So if I were to find that even if there were some sort of discussions of a joint venture nature between plaintiff and defendants, I could not see sufficient certainty in any of those terms to enable me to spell out exactly what their contract was. And it seems to me that even if I were to find (which as I will go on to find, I do not on the evidence) but even if I were to find there was a contract, it would be so uncertain as to be unenforceable. As I have said, first, there was a lack of clarity in the terms and the conditions which are claimed to exist in this contract or arrangement. Secondly, given the onus on the plaintiff on the balance of probabilities, I cannot find on the evidence that there was indeed a contract formed.

The defendant, as I have said, alleges that there was an employment, by the second defendant of the plaintiff, as its Paint Division Manager; and a later dismissal of him, on the 29th of November, for some sort of impropriety, and the suggestion even that that may have been a matter of theft given what is on the face of the documents and what is to be seen on the invoice D19 at page 4 and in the letter from Taubmans of Fiji to the second defendant of 14 February 1996, Exhibit D22.

The documents which have been produced, or all the ones that are particularly relevant, seem to me to indicate that this container of paints was shipped to and for the second defendant. There is support to be found, as I say, in those documents particularly in the invoices and in the bill of lading. Both of those documents I accept have the plaintiff’s name on them, but only as a point of reference as the ordering person, that and no more. They quite clearly state that the consignment of paints is for Trident Heavy Engineering. So you have documents such as those invoices, the bill of lading, the customs entry forms, the sale tax forms, the tenancy agreement, the receipts for rental and bond, all of which indicate that this container of paints was being imported into Tonga from Fiji by the second defendant and that the second defendant was setting up a shop in Railway Road from which to sell those paints.

It is perhaps true that the defendants have not helped themselves, to some extent, by not producing some of the other documents that must obviously be within their possession or at least, on the evidence of Mr Faletau Jr, must have been in their possession such as (a) the reference he made in his evidence to letters from customers or potential customers when the market survey was done; (b) the pay records referred to by him and again by a subsequent witness Mr Kumar. One would have thought they should have been produced; (c) the minutes of the company meetings that were referred to by Mr Faletau Jr; and so on.

Nevertheless on the documents which I do have, I make the finding that I have indicated namely that on the evidence the balance of probabilities comes down in favour of the plaintiff being employed as the Manager of the Paint Division by the second defendant.

The plaintiff, as I have already indicated, cannot show on the evidence that there was a contract. I find on the other hand, on the balance of probabilities, that he was employed as the Manager of the Paint Division. All these actions which I have heard about, it seems to me quite appropriately, fit within the duties of the Manager of that Paint Division. There is some support in the oral evidence for that position as well as the documentary materials which I have briefly referred to. The plaintiff's third witness, Tevita Taufa, in cross-examination, was asked if he knew whether Koloti worked for the second defendant and he said yes, he did know that.

Several of the defendants' witnesses, over and about the Faletaus themselves, ie Junior and Senior, gave evidence which was supportive of that position as well. The Assistant Manager of Tonga Timber referred to the fact that he was told by the plaintiff himself that he, the plaintiff, was the Salesman for the Company, that is the second defendant company and of course it was that witness who produced the letter Exhibit D23 which I have already referred to, and which makes it clear that that approach in late October 1995, to see whether the Tonga Timber Company was interested in buying paint, was an approach made on behalf of THE Paint Division. Another defence witness, Mr Kumar, who is an acknowledged part of the second defendant's organisation, said this ins an affidavit which he confirmed on oath before me.

"Whilst in Fiji, I met in about July 1995 with one Mr Vincent who happens to be a Salesman of Taubmans Paint Fiji Limited, who asked me, Mr Kumar to meet a Company in Tonga, re Taubmans Paint Fiji Limited to market their products. I was the initial contact. This meeting with Mr Vincent eventuated into my meeting Ian Martin, the General Manager of Taubmans Paint Fiji Limited. The rest of the negotiation was handled by Trident Heavy Engineering Paints Division. I know one Koloti whose post in the Company Trident Heavy Engineering was Manager Paint Division under Trident Heavy Engineering Co. Limited at Nuku'alofa."