Maiava v Tofilau [2002] WSDC 3 (9 July 2002)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

FRANCES MAIAVA
female of Taufusi,
PLAINTIFF

AND:

CLAY TOFILAU
male of Vaitele.
DEFENDANT

Counsel: J. Brunt for Plaintiff
T.V. Eti for Defendant

Date of hearing: 01 July 2002
Date of decision: 09 July 2002

DECISION OF NELSON, J

In a bare Statement of Claim, the plaintiff brings an action to recover from the defendant the sum of $1,400.00 which she asserts she loaned to the defendant on 19 May 2000. She also alleges in the statement of claim that she 'approached the defendant several times but he failed to do so'. I take that to mean she approached the defendant several times for repayment of the loan but he has failed to make any repayment.

The plaintiff's evidence given verbally and by affidavit was that on or about 10 May 2000, the defendant asked to borrow money in cash to pay for his relatives airfares to New Zealand. She said the defendant required $1,500 but she only had $600 on her, so she gave him this amount. On 19 May 2000, she borrowed $900 from her mother and when the defendant came to her place of work that day, she gave him the $900. She then told him she had no money left for herself and her children for the weekend, so the defendant returned $100. This is how the loan amount of $1,400 arises. At that time, the plaintiff was an employee of the Samoa Post Office, now Samoa Communications Ltd. On 22 May 2000, the plaintiff repaid her mothers money from funds sent to her by her husband in America. She said the defendant had represented to her that he paid the borrowed monies to Island Hopper Travel Agency ('Island Hopper') for his relatives' airfares.

She further testified that on 22 May 2000, she found out from her workmate Vaa, who she said was a relative of the defendant, that the defendant's relatives were not travelling to New Zealand until years end. She said she told Vaa of her loan to the defendant and further that Vaa had witnessed the transaction of 19 May 2000 at her place of -work where the $900 was handed over and $100 handed back, She clarified in her oral evidence that 'Vaa' referred to Aovaa Raponi who appeared not as a witness for her, but as a witness for the defendant.

The plaintiffs affidavit which she confirmed in her evidence, details how subsequent inquiries with Island Hopper revealed the defendant had deceived her, how she confronted the defendant on 23 May 2000 at her place of work, how the defendant admitted his deception and how her workmates Aovaa Raponi, Ivan and Tifaga witnessed this confrontation. Only Aovaa gave evidence in this matter but as stated above, she gave evidence as a witness against the plaintiff. She did not confirm the plaintiff's account of these events.

The plaintiff's further evidence is that she demanded repayment from the defendant on more than one occasion, either personally or through Aovaa and the defendant's response was he was seeking loan funds to repay the debt. She also said she sent her brother and cousins on more than one occasion to the defendant's house to collect her loan without success. She called as a witness one of her cousins Luka Sefo who agreed he had been sent by the plaintiff to a house at Vaitele to collect some money from a 'man' because the plaintiff needed money for a faalavelave. He could not however recall the amount he was sent to collect, nor could he identify who the man was, but he did say the man told him to come to his school the following day. He did not go to any school the next day and the usefulness of his evidence is very limited.

The plaintiffs other witness was her sister, Theresa Maiava who testified about withdrawing the $900 from their mothers account and handing this sum to the plaintiff. She said on the day in question, the plaintiff and defendant did talk but she did not see the plaintiff give the defendant any money. Theresa did not file an affidavit in these proceedings but her oral evidence suggested that the handing over of the $900 occurred not at the plaintiff's workplace, but after work and across the road from Chan Mows store on Beach Road. This of course is in direct conflict with her sister's evidence on the matter. Her evidence therefore is also of very limited value if any to the plaintiff's case.

The defendant's evidence given both orally and by affidavit was that the plaintiff never loaned him any money. He denied seeking a loan from her and denied receiving $600 or $900. His evidence was that in April 2000, he received a cellular phone as a gift from his brother in New Zealand. He asked his friend Filemoni Raponi if he knew of anyone wanting to buy a cellphone. Subsequently, Filemoni's wife Aovaa informed him a workmate of hers, the plaintiff, was looking for a cellphone. Aovaa directed him to the plaintiff and the plaintiff agreed to purchase the phone and its accessories for $500. He said he told the plaintiff that if over the subsequent two weeks she changed her mind and did not wish to keep the phone, she could return it and he would refund her money. He said the plaintiff agreed to these terms and that the transaction was concluded at the plaintiffs place of work and was witnessed by Aovaa who was standing very close to them. He said he heard nothing further from the plaintiff until about September 2000 when members of the plaintiff's family began harassing him at home and at the school where he worked to repay monies he had allegedly borrowed from the plaintiff. When he asked them about the cellphone, he was told to repay the money first. Threats to assault him were made and eventually the Police had to intervene to resolve the matter.

The defendant admitted that the cellphone which he said he sold to the plaintiff, while working, had not been hooked up to the Telecom Samoa system as he had no money to pay connection fees. This was why he wanted to sell the phone. He did not say whether he apprised the plaintiff of this very material fact. He denied being related to Aovaa Raponi and said she was only his friends' wife. He also denied making any travel arrangements as claimed by the plaintiff with Island Hopper.

The plaintiff in her evidence admitted that around April/May 2000, she was looking for a cellphone. But she said that on the 23rd May 2000, she received a cellphone as a gift from her brother in New Zealand. She admitted to taking possession of the defendant's cellphone and its accessories later that same day but said she was given those by the defendant as security for repayment of the loan. She did not explain why, if she already had a cellphone, she would therefore regard a second non-functioning cellphone as a worthwhile security for the loan.

Aovaa Raponi's affidavit and oral testimony confirmed that the defendant was indeed her husbands' friend and also confirmed much of the defendant's evidence. She said she saw the exchange of the defendant's cellphone for the plaintiffs cash at their place of work and she refuted every reference to her contained in the plaintiffs affidavit and the plaintiffs evidence. She said the plaintiff asked her to testify for her and she told her she could not testify to what she did not know about. Her husband Filemu Raponi also gave oral and affidavit evidence supporting the defendant's case as did the defendant's father Emau Tofilau. The defendant thus was able to produce a number of witnesses to confirm his contentions. In contrast is the situation regarding the plaintiff and her witnesses which I have already commented upon. The plaintiff did not produce any other witnesses to substantiate her claims.

In the final analysis, the plaintiff stands very much alone. Her evidence and claim is not supported by any other person and it is most difficult to accept that she would lend such a large amount of money, for no special reason, to a person she had only known since the beginning of the year 2000 and whom she only met through a work colleague. To make such a loan to such a person without security or documentation makes her claim even more incredulous. The plaintiff did not strike me as uneducated or ignorant and I do not accept she would willingly place herself in such a vulnerable position. The overwhelming preponderance of evidence is more inclined towards the defendant and his assertion that money was paid by the plaintiff for purchase from him of a cellphone and accessories. It appears the defendant may have sold the plaintiff a dud cellphone since it had not been hooked up to the local telecommunications network but there is no claim before the Court by the plaintiff for breach by the defendant of a sale contract or for breach of any implied warranty as to fitness of goods under the Sale of Goods legislation. Indeed, plaintiffs counsel advised the Court in the course of the proceedings that his clients claim was for repayment of a loan and no other and that in this sense, she was seeking 'all or nothing'. In my judgment, on the evidence produced before me, she cannot succeed in this claim. I accordingly give judgment for the defendant and reserve the question of costs for counsel to pursue further with the Court should they so desire.

JUDGE