Wadman v Telecom Fiji Ltd [2003] FJHC 14; Hbc0017j.2001s (22 July 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 17 OF 2001

Between:

DERRICK WADMAN
Plaintiff

and

TELECOM FIJI LIMITED
Defendant

D. Sharma for the Plaintiff
V. Kapadia for the Defendant

JUDGMENT

In 1998 the Plaintiff who was then the General Manager of the Suva Motor Inn bought an unimproved piece of land Lot 9 at Pacific Heights Place, Pacific Harbour.

The Plaintiff told me that before buying the land he checked with the various utility providers such as electricity, water, sewarage and telephone.

In October 1998 he was verbally assured by Telecom’s Customer Service Department that installing a telephone would present no problem: the property three blocks away was already connected.

In September 1999 the Plaintiff began building his house on the land. He applied to Telecom for a field telephone for the builder.

Following an on site meeting the Plaintiff was advised by one Kamal Prasad an engineer with Telecom that connecting the telephone would involve payment for the cable extension. The Plaintiff was displeased with what he was told by Prasad and took the matter up with his superior Mr. Mustaq Ali. Mr. Ali advised him that connecting the telephone would cost him $2062. The Plaintiff considered these charges to be exorbitant and refused to pay.

In his capacity as general manager of the Suva Motor Inn the Plaintiff had had previous dealings with the Chief Executive Officer Telecom, Mr. Winston Thompson. He decided to take up the matter of his telephone connection with Mr. Thompson.

According to the Plaintiff he spoke to Mr. Thompson by telephone and explained the problem to him. Mr. Thompson promised to look into the matter and to revert to him.

The next thing that happened was that a member of the Plaintiff’s staff, a Mrs. Vini Satala, told the Plaintiff that in his absence she had taken a message from a Mr. Thompson. The message was that the installation of the Plaintiff’s telephone had been approved and that he should now pay the connection fee and deposit. Following receipt of this message the Plaintiff went to Telecom and paid standard charges of $158.

Some weeks later the telephone had still not been connected and the Plaintiff telephoned Mr. Ali. Mr. Ali advised him that the telephone would not be connected until he paid the cable extension charges of $2,062. The Plaintiff told me that he pointed out to Mr. Ali that Mr. Thompson had approved the installation upon payment of the connection fee and deposit only but Mr. Ali was adamant that the additional charges was still to be paid. Without further ado the Plaintiff issued his writ seeking:

(a) an order for specific performance directed at the Defendant and

requiring it to install a telephone at Lot 9;

(b) general damages; and
(c) costs.

The Plaintiff told me that in fact he has now been connected to the telephone. Telecom cabled the whole of Pacific Heights Place early in 2003 and without paying anything beyond the normal connection fees a telephone was connected to the Plaintiff’s residence. He was however persisting with his claim for damages.

The Plaintiff explained that he had been considerably upset and inconvenienced by not having a telephone. He was unable to afford a vodaphone and in any event installation of the security system which he required for his new house was dependent upon the existence of a land line. Finally, the worry of leaving the newly built house empty and out of contact was so great that in December 2001 he resigned from the Suva Motor Inn and retired to his new home. The Plaintiff explained that he was claiming $20 per day for the 1,100 days during which his telephone remained unconnected by way of damages for “stress, duress and inconvenience”. In addition he was claiming 3 years of earnings foregone as a result of his resignation which, at the rate of $43,500 per annum totalled $130,500.

Three witnesses were called by Telecom. Mr. Kamal Prasad, Technical Officer Line Planning and Mr. Mustaq Ali, Manager Customer Access Network Planning did not dispute the Plaintiff’s claim that they advised him that Telecom would not connect the telephone until he agreed to make a substantial payment of about $2,000 either wholly in cash or partly in kind towards the cost of the cable extension. Mr. Ali also accepted that the Plaintiff had paid the standard connection and deposit fees in about April 2000. The acceptance of this payment was described by Mr. Ali as “a mistake”.

Mr. Thompson, Telecom’s Chief Executive Officer also gave evidence. He told me that he did not recall discussing the Plaintiff’s problem with him and he did not recall telephoning the Plaintiff and leaving any message with his secretary. He told me that he was aware that the Plaintiff was aggrieved by Telecom’s demand for payment for the extension of the cable but explained that after he and Mr. Ali had together visited the Plaintiff’s home site at Pacific Harbour and after he had determined that Telecom’s terms for connecting the telephone were reasonable he had left it to Mr. Ali to deal with the Plaintiff.

The Plaintiff’s version of his dealings with Mr. Thompson was partially corroborated by his secretary Vini Satala who told me that she had taken a message from a person calling himself Mr. Thompson and that she had passed the message on to the Plaintiff. Since Mr. Thompson’s evidence only was that he did not recall leaving any such message there is no reason not to accept the Plaintiff’s case that he did. The difficulty however is to know exactly what the message was.

As has been seen Mr. Thompson’s evidence was that he agreed with Mr. Ali that the Plaintiff would have to pay for the cost of extending the cable up to his residence. He denied that he had agreed to waive the demand for the payment of about $2,000. In the face of this denial, which I accept, it seems impossible not to conclude that Telecom’s position as communicated to the Plaintiff from Mr. Thompson’s office via Vini Satala somehow became garbled.

It is a remarkable fact that the only document generated before the writ was issued was Exhibit D1 which the Plaintiff told me he had never seen before but which Mr. Prasad told me, and which I also accept, was his calculation of the $2,166.45 which the Plaintiff was expected by Telecom to contribute towards the cost of the extension of the cable. Notably absent is any document containing a request by the Plaintiff to be connected, any written reply to this request and any written reply to the Plaintiff’s request after the intervention of Mr. Thompson. This despite the fact that by then the whole matter had clearly become vexed to the extent that the Chief Executive Officer of Telecom had become involved. There was no letter before action and the first letter sent by Telecom was dated 2 February 2001 (Plaintiff’s Exhibit 1) some three weeks after the writ was filed.

The Plaintiff’s case is that Telecom agreed, through its Chief Executive Officer to connect his telephone without the payment by him of a charge for the extension of the cable and that Telecom breached this agreement. Telecom’s case is that it never resiled from its demand that the Plaintiff cover the additional cost of connecting his telephone.

In legal terms the Plaintiff’s case is that Telecom is in breach of contract and that therefore he is entitled to damages. Telecom’s case however is that there was no consensus ad idem and therefore there was no concluded contract and accordingly no breach giving rise to an entitlement to damages.

Taking the evidence as a whole I do not find on the balance of probability that the Plaintiff has shown that Telecom or Mr. Thompson in fact ever agreed to forego the cable extension costs of about $2,000. I accept Mr. Thompson’s evidence that he agreed with Mr. Ali that the Plaintiff would have to bear the cost of extending the cable. At the same time it is obvious that the Plaintiff’s application was not handled as efficiently and clearly as was desirable. If Telecom had simply set out its position in writing then the Plaintiff would not have been led into misunderstanding. Misunderstanding, however, is not the same as a breach of contract.

The Plaintiff’s case fails and is dismissed however had better contemporaneous records being kept then in all likelihood this matter would not have come to court. In the circumstances there will be no order for costs.

M.D. Scott
Judge

22 July 2003