A claim by 'Ikani L. Taliai against the Ministry of Internal Affairs and others for breach of contract seeking a sum of $140,000 and general damages of $80,000, was dismissed by the Nuku'alofa Supreme Court.

Justice Niu on 27 September 2021 ordered that the claim by the former sports consultant be dismissed with costs to the defendants.

The second and third defendants were the then Minster of Internal Affairs, Dr Saia Ma'u Piukala, and the CEO, Fotu Kuohiko Valeli Fisi'iahi.

‘Ikani Taliai (54), a Tongan who lived and worked in Australia, was contracted by Tonga’s Ministry of National Sport as Tonga’s Consultant Director of National Sports for two years from 1 July 2017 to 30 June 2019. His claim related to a second contract that was to come into effect from 1 September 2019 to 30 August 2020. He claimed he was validly retained by the Ministry of Internal Affairs as a project manager for the Sports Reform and Commercialisation Project of the Minister, in extension of his previous contract, but at a reduced base fee of $140,000 for one year, “to be paid monthly in advance”.

He claimed the minister had signed the contract and the CEO had witnessed it. He had not been paid for four invoices for the months of September, October, November and December 2019, before he filed his claim in the Court.

The Judge concluded that the claim of the plaintiff could not be sustained because he had 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.

The court was told that, in addition, toward the end of his first contract as the Consultant Director of National Sports on 30 June 2019, ‘Ikani was appointed as the Chairman of Tonga Sports Council on December 2018 with a monthly salary of $1,000 and a meeting fee of $100.

In the second Consultancy contract, the plaintiff was to be paid a total salary of TOP$140,000 in equal monthly payments of TOP$11,666.67, and a commission of 7.5% of the net total of successfully negotiated agreements pertaining to sponsorship media broadcasting, promotion and investment monies, which ‘Ikani would have undertaken with third parties to the value of two million pa’anga and above.

Consultancy services

The Prime Minister, ‘Akilisi Pohiva passed away on 12 September 2019, and the new Prime Minister, Pohiva Tu'i'onetoa was appointed on 27 September 2019. On 4 October 2019, the Cabinet approved the contract of the plaintiff.

Following that the four invoices were not paid.

The court considered the regulations defining consultancy services. “A Consultant is not an employee. He is only contracted to perform a specific Service for which he is the expert ...That is what he is contracted to carry out.”

The plaintiff had admitted in cross-examination that he had not performed any of the activity under the second contract. His invoice contained no particulars of any service, which he had rendered in pursuance of the contract.

The judge said the contract stated clearly that the client shall pay the Consultant for “services rendered”, which meant the services must be rendered first. “It therefore makes no sense to include the words ‘will be paid a month in advance’,” he said.

He considered that the words ‘in advance” were used to apply to the additional benefits (in the first contract) of $14,000 which was payable for his monthly electricity and water bills, internet installation and monthly internet and communication, and for return air fare to Melbourne, Australia, once a year.

The judge concluded that the claim of the plaintiff could not be sustained.

“He has claimed specific performance of the contract, that is that this court pay him for the four months for which he had issued invoices, and to order the first defendant to pay him for the remaining eight months”.

The judge considered the principle of equity. “A person who has not performed his part of the bargain cannot ask that the other person be ordered to perform his part instead,” he said.

The judge also found that the second and third defendants (the Minister and CEO) were not personally liable under the Public Procurement Regulations.