Valevale v Loto'aniu [2009] TOLC 2; LA 15-2008 (30 June 2009)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 15 of 2008

BETWEEN:

KIMIKO VALEVALE
Plaintiff

AND:

1. TEVITA LOTO’ANIU
2. PAPA PUAFISI
Defendants

BEFORE THE HON. JUSTICE ANDREW

Counsel: Ms. Lesina Tonga for the plaintiff and Mr. Clive Edwards for the defendants

Date of Hearing: 20th – 22nd April, 2009
Date of Judgment: 30th June, 2009

JUDGMENT

This is an action by the Plaintiff against the defendants in regards to a town allotment situated at Ma’ufanga and now registered in the name of the first defendant. That land is described as "FAKAPALE" Area 772 m2 Plan 5306 LOT 3 (D/G 322/46) Registered Date 20/04/1993.

The plaintiff is seeking the following orders against the defendants:

(i) A declaration that the plaintiff has a valid tenancy right over the allotment up to 25th February 2035.

(ii) Judgment for liquidated damages in the sum of $150 per day as from August 2007 for every day the plaintiffs tenancy right has been disturbed, together with interest of 10% per annum (approximately $1,095,000.00 and interest of approximately $109,500.00)

(iii) Judgment in the sum of $1,800 for damages to the fence.

(iv) A restraining order against the defendants not to disturb or interfere with the tenancy rights of the plaintiff her agents and subtenants on the allotment.

(iv) Costs.

At the outset I make the observation that the second defendant appears to have been acting as the attorney for the first defendant in the various proceedings between the parties and it is difficult to see how she could be personally liable in this case.

The background to this matter is as follows:-

The first defendant’s father was SIONE FIE’EIKI FATAI or SIONE FATAI LOTO’ANIU. In 1988 the allotment was allocated to him but not then registered to him as he already had a registered town allotment at Houma (s.48 of the Land Act provides that no person who already holds a tax allotment or town allotment shall be granted a second allotment of the same kind)

On the 28th September 1988 a tenancy agreement was entered into by the Plaintiff and Sione Fie’eiki Fatai. That agreement (as cited) provided, inter alia, as follows:-

(i) That Sione is the owner of the building on his town allotment.

(ii) Kimiko (the plaintiff) is obliged to complete renovations of Sione’s house and she is permitted to build in front or at the rear of the existing building and not to build beyond half of the allotment.

(iii) All the renovations and new buildings to belong to Sione

(iv) The term of the agreement is for 15 years expiring on 30th September 2003.

(v) The annual rental was fixed at $300 a month and to be paid 6 months in advance in the sum of $1,800.00.

(vi) Kimiko is permitted to carry on her own business on the property.

(vii) Kimiko is only permitted to bring a person to carry on her business or stay in the dwelling house if she is overseas, sick or unable personally to attend to her own business.

(viii) There was no subletting provision in the agreement.

Two subsequent agreements were entered into in 1998 or 1999 and on 10th March 2004. That is the 2nd and 3rd agreements. The 2nd agreement extended the term of the plaintiffs tenancy to the 25th January 2035. That agreement is said to reflect the plaintiffs right to continue with her tenancy and her right to have subtenants, agents, heirs or devisees on the allotment.

The agreement of the 10th March 2004 ("the 3rd agreement") is said to be a variation of the 1st and 2nd agreements and the term of the plaintiffs tenancy is said to have been further extended to the 28th February 2035. Further it is said that the plaintiff has paid in full for the rental up to 28th February 2035.

Sione Fie’eiki Fatai (or Sione Fatai Loto’aniu as he was also known) was not the registered holder of the land. As already stated he was the registered holder of a town allotment at Houma. In 1988 Kelekolio Loto’aniu, the grandfather of the first defendant was the registered holder. He died in 1991 and the allotment was then registered on the first defendant on the 20th April, 1993.

THE PLAINTIFFS CLAIM TO A VALID TENANCY RIGHT OVER THE ALLOTMENT AND BUILDINGS.

The plaintiff claims that she has a valid tenancy right over the allotment and buildings. It is submitted:

(a) The person SIONE rented his house on the allotment to the plaintiff from 1988.

(b) Sione never registered the allotment but his authority over the allotment was never questioned, by any person.

(c) Until about 2nd December, 2004 (when the then counsel for the first defendant and the 2nd defendant) wrote to the Plaintiff and required her to vacate the allotment was a period of over 16 years since the plaintiff had the tenancy right over the allotment and the buildings thereon.

(d) Sione’s tenancy agreements with the plaintiff gave her permission for renting his house, build new buildings, and use and occupation of half of the allotment by her and her sub-tenants and the right to carry out her business on the allocated portion of the allotment.

(e) The plaintiff, in 1999 had paid for her tenancy up to January, 2035.

(f) The plaintiff, in March 2004 further paid for her tenancy up to 28th February, 2035.

(g) From the date of registration to the 2nd December 2004, a period of over 11 years, the first defendant never questioned nor disturbed the plaintiffs tenancy on the allotment.

(h) That between 2nd December 2004 to present, the first defendant did not issue court proceedings against the plaintiff until August 2007 when he forcibly evicted the plaintiff by removing her newly erected fence, stopped her agents and fenced the whole allotment. At that time, the plaintiff had first finished filling her allocated area of the allotment with coral rocks and was to start erecting a new building.

(i) The first defendant did not question Sione (his fathers) management and dealings regarding the allotment. He was satisfied with whatever arrangement his father did in regards to the allotment. He knew of the plaintiffs tenancy, yet he never discussed or questioned his father regarding the terms of the tenancy arrangements on agreements over the allotment.

(j) That by conduct and practice, the first defendant permitted, accepted and agreed with whatever arrangement or dealings for rental and tenancy regarding the allotment. Therefore, it is said, he is stopped from evicting the plaintiff or disturbing her tenancy rights.

(k) The plaintiff has paid for her tenancy and it would be a breach of natural justice and fairness to evict her taking into account that the first defendant knew of her rental tenancy subject to whatever arrangements and agreements she entered into with Sione, the father of the defendants, but chose not to check or put limitations over Sione’s power or right regarding the allotment.

THE ALLOTMENT

As stated the town allotment was registered on the name of TEVITA FATAI LOTO’ANIU (the first defendant) on the 20 April, 1993 and it was to be known as FAKAPALE.

The plaintiff is claiming that she has the undisturbed right to use the first defendant’s town allotment until February 2035 and that claim is based on the three agreements referred to. Those tenancy agreements state that SIONE FATAI LOTO’ANIU is the registered holder of the town allotment. This is incorrect.

Further, the plaintiffs claim is founded on a letter of authorisation dated 15 March 1999 which the plaintiff refers to as a power of attorney which purportedly was an authorisation by the first defendant to his father (Sione) to act on his behalf in dealing with his allotment as he might wish. The 1st defendant says that this authority (or so called power of attorney) is a forgery and that he had never given any such authority or power of attorney to his father.

That authority is in the following terms and I quote:

" "AUTHORITY CONCERN"

This letter is simply an authorization that authorised Mr Sione Loto’aniu, who is my father, to duly have the authority over my land situated at Ma’ufanga, Tongatapu, Tonga.

"He is also assigned to have every right and obligations to any existing contract between me and another party regarding the said land.

"He can lease, rent or do anything to the said land.

Dated this 15th day of March 1999

......................

(signed) TEVITA LOTO’ANIU

......................

Witness

SEVULONI R. VALENITABUA

BARRISTER & SOLICITOR

COMMISSIONER FOR OATHS

The plaintiff in her Statement of Claim says that the defendant’s father showed her this original power of attorney given to him by the first defendant which had been notarized and dated the 15 day of March 1999 "and a photocopy of the said power of attorney was given to the plaintiff whilst the father held the original" she claims that the first defendant is bound by this ‘power of attorney’ and that her tenancy rights can-not be disturbed by the defendant until after February, 2035.

AUTHORITY OR ‘POWER OF ATTORNEY’

SIONE FATAI LOTO’ANIU the father of the first defendant, who has and will be referred to as Sione is now deceased. There is some evidence that in 1999 Sione went to Fiji where the ‘Power of Attorney’ was produced. There is some corroboration of this in that the witness to the document bears a Fijian name. The Plaintiff agreed that the power of attorney was shown to her after Sione had returned from Fiji. The first defendant (hereinafter referred to as Tevita) says that he was never in Fiji in 1999; he says he never executed this document and that it is a forgery.

Having heard the evidence of Tevita I accept him as an honest and reliable witness. He says that the signature on the document is not his and is clearly a forgery.

On the whole of the evidence and in all the circumstances including circumstantial evidence I am convinced that this document whether it be called an ‘authorisation’ or ‘a power of attorney’ is a forgery and I so find for the following reasons:-

- I accept the evidence of Tevita that this is not his document and that it does not bear his signature.

- The name of the first defendant on the ‘authority’ is not the same as his name appearing on the Certificate of Registration of Ownership. The name ‘FATAI’ is omitted. The signature of TEVITA LOTO’ANIU is completely different from the handwriting or signature of the Tevita which appear on a Power of Attorney dated 13th December 2004 which he signed before a Magistrate. It is different to the signature on his passport (which coincides with the signature on the said Power of Attorney and it coincides with his signature of his US Green Card (a resident card for the USA)

S.76 of the evidence Act provides as follows:

"In order to ascertain whether any signature or writing is that of the person by whom it purports to have been written, any signature or writing on that of the person by whom it purports to have been written any signature or handwriting or writing admitted or proved to be the satisfaction of the court to have been written by that person may be compared by a witness or by the court or the jury with the one which is to be proved although that signature or writing could not be admissible as evidence for any other purpose"

I am satisfied that Tevita’s signature as appearing on his passport and on earlier documents produced and on the US green card is his genuine signature [see evidence Act S.75 (2)] I am satisfied pursuant to S.76 of the Evidence Act, that the signature on the authority is not Tevita’s signature. I am satisfied that the ‘authority’ is a forgery and that it was produced or caused to be produced by SIONE.

- There is further circumstantial evidence. The plaintiff had assisted SIONE financially. Sione had previously mortgaged the land and he defaulted with his loan repayment. The plaintiff paid off the loan, apparently as she wanted to secure a proper tenancy agreement. I accept the evidence that Sione wanted further financial assistance. The Plaintiff in her own words and in her submissions required Sione to provide proof of security of her Tenancy which led to Sione presenting the power of attorney dated 15 March 1999. It is no great leap of faith to see that Sione was driven to obtain an ‘authorisation’ whereby he could then execute the tenancy agreement and that he took the extraordinary step of going to Fiji to have it prepared, where presumably it would be difficult to check its authenticity or genuineness.

- There is a letter dated 2/11/2004 from the Law office of SIONE TEISINA FIFITA on behalf of Sione to Tevita sating

"I am sending this letter to you as a warning that you must now sign the letter to the Minister of Lands for Sione to lease the allotment to anyone he wish" There then follows a threat of prosecution if he (Tevita) did not sign the authorisation for Sione to leave the allotment to anyone he wished.

If Sione already had a power of attorney authorising him to have full authority to lease the land or do anything with it that he wished, why was it necessary to write this letter.

For all of these reasons and in all of the circumstances I find that the so called authorisation or Power of Attorney which Sione produced was a fraud and that the tenancy agreements which were then entered with are invalid and the plaintiffs claim that she has a valid tenancy right over the allotment up until 25 February 2035 must fail.

Additionally the plaintiff also faces the difficulty that the agreement she did have was not registered as required by S.126 of the Land Act.

I should add that the Plaintiff is not shown to have been complicit in any fraud. It has been said that even if the ‘authority’ is proved to have been fraudulent then that should not be a bar to her claim taking into account that she acted in good faith. That she has paid rental up to 2035 and that Tevita had known of her rental tenancy. I am not sure of what Tevita knew of the agreements made by his father. He lived in the US and appears to have taken an active interest when he returned to Tonga. I might add here that the land is currently vacant.

But fraud is fraud and the tenancy agreements have been proved to be fraudulent such that they are invalid. There is a consequence that if that is ignored then Tevita, who is the registered owner, might be liable under this claim to an amount of $1,098,000.00 plus interest and such a claim ultimately comes back to agreements which were fraudulent, and that cannot be legitimate.

For all of these reasons the plaintiffs claims are dismissed. She does not have a valid tenancy agreement in relation to any part of ‘FAKAPALE’ PLAN 5306 LOT 3.

I give judgment to the defendants with costs as agreed or taxed.

NUKU’ALOFA: 30 June 2009

JUDGE