Tongaai v Attorney General [2010] KIHC 87; Civil Case 52 of 2010 (29 September 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO

High Court Civil Case 52 of 2010

BETWEEN:

BAURO TONGAAI on his own behalf and behalf of those who repaired the seawall
PLAINTIFF

AND:

ATTORNEY GENERAL iro Ministry of Works and Public Utilities
DEFENDANT

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr Monoo Mweretaka

Date of Hearing: 29 September 2010

JUDGMENT

The seawall of the Abaiang maneaba in Betio has been damaged twice. The first time, about 2006, it was repaired by people from Abaiang with assistance from the Government by way of materials and plant and equipment: the Abaiang people did the work. The second time the Government provided materials but, contrary to the expectations of the people from Abaiang, the plaintiffs, no equipment was provided.

The member of Parliament for Abaiang, the plaintiff, Mr Bauro Tongaai, checked the Project Document (Exhibit P1) and noticed that $4,715.49 – the amount claimed in this action – had been included as "cost of plant". Mr Tongaai contacted the Ministry of Works and spoke to the Civil Supervisor:-

I contacted Min Works – Civil engineer responsible then to Secretary. Told CE plant/equipment not arrived. He told me to tell people of Abaiang to do work and then charge Ministry for labour and it would be paid. Told people to do the work. Job completed. Made claim. No payment: told to take claim to OB. I went with unimwane et al – Betarin, previous secretary to OB. He said MW wrong in not paying and to come back after two days. After two days – told OB would pay tomorrow. Next day – no payment because no money.

The Government was to pay $4,715.49, the amount set aside in the Project Document for "cost of plant".

That evidence is uncontradicted. The defendant did not call evidence. Mr Mweretaka said his witnesses were too busy to come to Court today. He applied for an adjournment. I refused the application. The date of hearing had been fixed on 6 August. Prospective defence witnesses had had six weeks to make arrangements to come to Court today. The Court will not readily grant an adjournment for such a reason.

Mr Mweretaka then applied to tender several affidavits instead of calling oral evidence. This was quite an irregular application. If a party proposes to rely on affidavits they should be filed in Court well before the date for hearing and copies served on opposing parties. The deponent should then be available in Court for cross examination if required.

I told Mr Mweretaka I would not receive the affidavits unless Mr Berina consented to their tender. Mr Berina did not consent. I refused the tender.

Mr Mweretaka made a written submission. It appeared from his cross examination of Mr Tongaai and from his submission that the only defence – it was not even hinted at in the Defence – related to Government policy:-

3. Under the current policy for disaster related projects, the government is only required to provide funds for the materials needed and to some extent the needed technical advice and assistance (such as site survey, preparation of design drawings and costing, and on-site supervision and inspection). Other required inputs such as labour and perhaps the use (hire) of plants and machineries are provided for by the Community.

4. The claim submitted by the plaintiff to the defendant relates to plants and machineries which are clearly not included in the policy .....

9. The assurance given by the Civil Superintendent of the defendant to the plaintiff was based on his understanding when preparing the overall costing of the project that the cost for the plants and machineries, as one component of the costing, are budget for. However the payment on each component of the overall costing is subject to the project policy in place and to the approval by the Office of Te Beretitenti.

10. Given that the plants and machineries are not included in the policy therefore no funds will be paid.

Mr Tongaai in cross examination said he knew nothing of the policy.

Government policy cannot override an arrangement (an oral contract which was performed for their part by the plaintiffs) made in a particular case. The Government, through the Civil Supervisor and supported by the Project Document, made an arrangement that instead of providing plant and equipment to do the work, it would pay to the Abaiang people the equivalent of the money set aside for the plant and equipment. The Government later reneged on the arrangement. As a matter of law it cannot do that.

There is no dispute the amount set aside is $4,715.49.

There will be judgment for the plaintiffs for $4,715.49.

Dated the 29th day of September 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice