The Supreme Court has saved Tonga government an estimated TOP$220,000 in potential back-pay claims after it dismissed a lawsuit by the former government project manager ‘Ikani Taliai.
Justice Niu ruled that he cannot direct the government to pay Taliai the money he had asked for because he did not perform any service according to his obligations laid out under the contract.
Mr Niu, after hearing from both legal counsel parties, agreed that Taliai’s contract was duly “approved” in accordance with the Public Procurement Regulations.
However, he said Taliai has “rendered no service under the contract and yet he claims payment of those unrendered services, at least of the 5 months for which he issued his invoices, and now claims the payment for the remaining 8 months as well in his present claim”.
The court was told Taliai was contracted by the Ministry of Internal Affairs, as project manager for the Sports Reform and Commercialisation Project.
It was agreed that his previous two-year appointment be extended for another year, but at a reduced base fee of $140,000 for that one year, commencing on 1 September 2019. The base fee to be paid monthly in advance in the sum of $11,666.67 within three business days of receipt of an invoice for the same.
Taliai sent invoices to the Ministry but had never received any payment.
“He therefore claims damages for breach of contract against the defendants jointly and severally in the sum of $140,000 and general damages in the sum of $80,000”.
In his conclusion, Mr Niu said: “ I must therefore come to the conclusion that the claim of the plaintiff cannot be sustained.
“He has claimed specific performance of the contract, that is, that this Court orders the first defendant to pay him for the 4 months for which he had issued his invoices, and to order the first defendant to pay him for the remaining 8 months.
“Specific performance is an equitable remedy and equity requires that a person “who seeks equity must do equity” and that a person “who comes into equity must come with clean hands”. A person who has not performed his part of bargain cannot ask that the other person be ordered to perform his part instead.
The plaintiff has failed to prove that he had performed his obligations under the contract, or that he had been prevented by the defendants from performing his contractual obligations”.