Pa'ila v Mau [2002] TOSC 20; C APP 0001 2002 (21 May 2002)

IN THE SUPREME COURT OF TONGA
CIVIL APPEAL JURISDICTION
NUKU’ALOFA REGISTRY

NO.C.APP.01/2002

BETWEEN:

LATAI PA’ILA
Appellant / Plaintiff

AND:

1. ‘OSIMEI MAU
2. MANATU TU’IONO
3. MASEIA HOLDING COMPANY LTD.
Respondents / Defendants

BEFORE THE HON MR JUSTICE FORD

COUNSEL: Mr Niu for the appellant and
Mr Kaufusi for the respondent.

Date of hearing: 14 May 2002.
Date of judgment: 21 May 2002.

JUDGMENT

In this appeal the appellant is challenging a decision given in the Magistrates' Court on 6 August 2001 which disallowed her claim against the respondents and ordered her to pay costs to the respondents' solicitor in the sum of $150.

The appellant, as plaintiff, had brought the proceedings in the Magistrates' Court claiming a total of $750 against the defendants over a money transaction which she alleged had gone wrong. The third defendant operates an international money transfer business in Nuku'alofa and elsewhere. The first and second defendants are employees of the third defendant.

The money in question, which amounted to T.$700, was sent from New Zealand to Tonga on 1 Dec 2000. The sender was Malavina Katoa. Malavina works with the plaintiff at the Friendly Island Snack Bar in the Small Industries Centre at Nuku'alofa. It is not clear from the evidence why she was in New Zealand at the time. The magistrate noted that the purpose of the money transfer was for the plaintiff to pay off Malavina's loan at her workplace.

On the afternoon of Friday 1 December Malavina went to the Auckland office of the third defendant, Maseia Holding Co Ltd, and arranged for the $700 to be transferred to the plaintiff. The plaintiff's address was shown on the receipt form simply as the village of "Pili". Malavina's name appears on the receipt form as "Vina". Malavina was given the official receipt with the receipt number 12967. She said in evidence that she was unable to contact the plaintiff that afternoon because the people in the office told her that the Nuku'alofa office had already closed for the day. When she then tried to contact the plaintiff on Monday 4 December she learned that it was a public holiday in Tonga and so she was not able to make contact until Tuesday 5 December. On that day she gave the plaintiff details of the amount sent and the receipt number.

The plaintiff said in her evidence that after receiving the call from Malavina she went immediately to the office of the third defendant to uplift the money but she was told that it had already been withdrawn back on Saturday 2 December. She said that the person who attended her was the first defendant, 'Osimei Ma'u, and 'Osimei had told her that the woman who turned up on 2 December and uplifted the $700 claimed to be the plaintiff's sister.

'Osimei said in evidence that the procedure followed on this occasion was the normal procedure under which the third defendant company had operated over a number of years. The New Zealand office had faxed through details of the amount of money involved in the transaction, the name of the recipient and the transfer (receipt) number. 'Osimei said that the women who claimed to be the plaintiff’s sister had been able to give her the correct transfer number, the correct amount of money involved and the name of the sender. It was on that basis that she had given the woman the money and made out a receipt which the lady duly signed.

The plaintiff said that she only had one sister in Tonga at the time, Keasi Taufa, and the following day, 6 December, she took Keasi to the third defendant's office but 'Osimei said that it wasn't her. In her evidence, 'Osimei did not say that it wasn't the sister. She simply said: "I cannot remember the face of the person that came to collect the money."

That is the background to the case. Although the police were contacted, the $700 has never been accounted for. The plaintiff brought the court case alleging negligence on the part of the defendants. She claims the $700 plus general damages of $50 and costs.

There was a complicating factor which was obviously an important element in the magistrate's decision. On the same day that the $700 was paid into the third defendant's Auckland office for transmission to the plaintiff, i.e. 1 December 2000, another amount of $200 was paid into the same office for transmission to the plaintiff's mother, Volokeini Pa'ila. The $200, in fact, was the immediately preceding transaction. The receipt number for the $200 was 12966 and the receipt number for the plaintiff's $700 was 12967. The mother's address in the receipt was shown as the village of "Ngele'ia" although in evidence the mother told the court that she was from "Pili". The receipt shows that the sender of the money was "Lavinia". Both amounts were received at the defendant's Nuku'alofa office on the same day and are recorded next to each other in the facsimile from the Auckland office and in the formal receipt book recording all money transfers from Auckland.

The mother, Volokeini, gave evidence and said that the $200 had been sent to her by her youngest daughter in New Zealand, Mafi Pa'ila, although it had actually been another daughter, Lavinia, who had taken the money along to the Auckland office for transmission. Volokeini said that Mafi had not contacted her to say that the money was being sent over but she said that she had been told about the $200 by her daughter, Latai (the plaintiff) who had been given the information from Melavina's brother in Tonga, Penitoa. Whether it was Melavina who had telephoned Penitoa with the information or someone else is not clear from the evidence. The mother said that she and her other daughter in Tonga, Keasi, had then gone along to the third defendant's office on Saturday 2 December and uplifted the $200.

The magistrate noted that this evidence differed from what Keasi had told the court in that she said her mother had told her that it was Melavina's brother who had given her the information about the $200 but when that evidence had been put to the mother she denied that it was correct and reaffirmed that it had been the plaintiff, Latai, who had told her about the $200.

Surprisingly, perhaps, the plaintiff had not said anything in her evidence in chief about the $200 apart from the following comment which she is recorded in the court transcript as having said right at the end of her evidence in chief: "That, my mother Volokeini Pa'ila’s $200 was transferred and withdrawn on the 2^nd of December 2000. ‘Osimei told me that my money was first withdrawn which was $700 and then my mother’s $200." She was not asked to elaborate on this statement in chief but she was cross-examined about the $200. Initially she denied knowing who had sent the $200 to her mother but towards the end of her cross-examination she admitted that she knew that the money had been sent by her sisters in New Zealand although she did not know which one.

The mother confirmed in her evidence that she and Keasi had gone along to the third defendant's office on Saturday 2 December and had uplifted the $200 but she said that she had not known anything at that stage about the $700 and she was unaware that the two amounts had been transferred over from New Zealand together.

Keasi, in her evidence, confirmed that she had gone with her mother to the third defendant's office on the Saturday to uplift the $200 but she also denied knowing anything at that stage about her sister's $700. Given this evidence from the mother and the sister, it seems rather strange that the plaintiff would have gone to the trouble to bring Keasi back into the third defendant's office on 6 December to see if 'Osimei could recognise her as the woman who uplifted the $700 on 2 December when she (Keasi) freely acknowledged that she had been in the office on 2 December anyway, with her mother, uplifting the $200.

The picture confronting the magistrate, therefore, at the end of the case was obviously a confusing one and issues of credibility were involved. He concluded that someone was telling lies and he was not satisfied that the plaintiff had made out her case. Indeed, he expressed the very clear view that either the plaintiff, her sister or the mother had uplifted the $700 on 2 December.

On the question of negligence, the magistrate concluded that there had been no negligence on the defendants' part. He noted that the same procedures had been in place since 1994 without any incident or problems. He also noted that, although the third defendant had changed the practice after this particular incident to require passports or proper IDs to be produced by anyone uplifting funds, the plaintiff had not called any evidence suggesting that the previous system had been faulty in any way.

Mr Niu was critical of the conclusions reached by the magistrate and submitted that there were no grounds upon which he could have concluded that the plaintiff, her sister or mother had uplifted the $700. He also challenged the magistrate's finding that there was no evidence of negligence on the defendants' part. In this regard, he submitted that the first defendant 'Osimei, should have asked for an ID of some sort before paying out the funds or, at the very least, she should have asked further questions as to the whereabouts of the plaintiff or the reason why she was unable to collect the money herself.

For his part, Mr Kaufusi, in helpful written submissions, took the court through the evidence and submitted that the magistrate's conclusions were not only consistent with the evidence but, as he put it, were "right" . Mr Kaufusi submitted that it was significant that the plaintiff had not said anything about the $200 in her evidence in chief. He asked, "why did Latia not tell the story in her examination in chief?"

An appellant challenging factual findings made by a magistrate faces a formidable task. The authorities are quite unequivocal. This Court will only interfere with a magistrate's factual findings in the clearest of cases. The principle is well expressed in the headnote to the Court of Appeal decision, Brown, Kali & Minister of Lands v Tali 'Ofa [1990] Tonga L.R. 136:

"When reviewing a decision on questions of fact an appellate court should not interfere with the decision unless it was plainly unsound by reason of material inconsistencies or inaccuracies, or unmistakable failure to take advantage of having seen and heard the witnesses, or failure to appreciate the weight and bearing of circumstances admitted or proved."

Credibility is peculiarly a matter to be dealt with by the primary court as is the evaluation of the conduct of the parties in the light of the facts found.

Mr Kaufusi was obviously inviting the court to conclude that there was something sinister in the various contradictions in the evidence called by the plaintiff and in the plaintiff's failure to tell the court the whole story about both the $700 and $200 right from the outset. He may well be right, but who better to make a determination of that nature than the magistrate who has sat through the trial and seen and heard the plaintiff and all of her witnesses.

Out of deference to the persuasive submissions advanced by counsel for the appellant, I suspect that my review of the facts in this judgment may be unnecessarily lengthy. I have, however, considered carefully every submission advanced by counsel but I am unable to conclude that the decision is unsound or that the learned magistrate got it wrong in any significant way. On the contrary, it appears to me to be a carefully considered decision.

The appeal is dismissed. The respondent is entitled to costs to be agreed or taxed.

NUKU'ALOFA: 21 MAY 2002.

JUDGE