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Penitani v Uele [2024] TOLC 1; LA 3 of 2023 (24 April 2024)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY


LA 3 of 2023


BETWEEN:
SOSEFO PENITANI
Plaintiff


AND:
1. POHIVA UELE
2. SIONE UELE
3. MINISTER OF LANDS
Defendants


JUDGMENT
___________________________________________________________________________


BEFORE: ACTING CHIEF JUSTICE TUPOU KC
LAND ASSESSOR: FAIVA TU’IFUA


Appearances: Mr W. C. Edwards SC for the Plaintiff

Mr D. Corbett for the First and Second Defendants
Mrs J. Lomu for the Third Defendant
Date: 24 April, 2024


There has been a delay in releasing this judgment due to other business of the court. I thank the parties for their patience.


The Claim


  1. The Plaintiff, Sosefo Penitani brings this action, challenging the validity of Lease No. 9810 registered in the name of the First Defendant, Pohiva Uele. The lease consists of 3 acres from the plaintiff’s hereditary tax allotment he inherited after his father, Soane Penitani (“Soane”) died on 13 February, 2021. The lease was registered on 26 January, 2021.
  2. He seeks a declaration that Lease No.9810 is unlawful and of no effect. The primary challenge is that the signature on the lease application (“the L9 form”) is a forgery.
  3. He seeks the lease be cancelled and the First Defendant removed from his tax allotment (“the allotment”) and ordered to pay $1,000 per annum commencing from the date of the lease for mesne profit.
  4. The Plaintiff claims the Second Defendant, Sione Uele, assisted his brother, the First Defendant in unlawfully obtaining and registering Lease No.9810.
  5. The Third Defendant, the Minister of Lands is joined to facilitate and implement any orders made by this court. No defence was required of him.

The Defence


  1. The First Defendant relies on his registered deed of lease and denies Soane’s signature was forged.
  2. The Second Defendant admits to assisting his brother but says it was in the course of his employment and not unlawful.

The Relevant Facts


  1. Soane’s tax allotment was registered on 26 February 2003[1]. It consisted of an area of 8 acres. He died on 13 February, 2021 and the Plaintiff claimed and registered both his town and tax allotment as the heir.
  2. Years prior to the subject lease, Soane and his wife, Folola Penitani (Folola) had befriended the First Defendant in Fiji while in transit to Tonga. After having been in Tonga for a few days, the Penitanis accepted an invitation to stay at the First Defendant’s house.
  3. In 2020, Soane and Folola returned to Tonga for the purposes of developing and operating a quarry from Soane’s tax allotment. In pursuance of those plans, Soane engaged Viliula Mafi to conduct a valuation of the tax allotment. Mr. Mafi’s report[2] of 3 February, 2020, estimated the market value of the rocks on the tax allotment to be worth TOP$2.5million.
  4. On or about 18 February, 2020 Folola returned to the United States to tidy up their affairs there and to ship home necessary equipment for their quarrying business. Soane remained to further their plans. It is noted that they kept up their friendship with the First Defendant.
  5. On 13 August, 2020, Soane lodged a letter[3] dated 12 August, 2020 to the Minister of Lands, applying for a quarry licence. In it, Soane described his wish to operate a quarry from his allotment for his family. He stated he had been approached by interested persons to lease his land. It was his opinion that the offers made fell short of the value of his land. It was his wish to venture into quarrying himself.
  6. Critical to the case, on the same day, the Second Defendant and Sisilia Kalaniuvalu (“Silia”) say Soane and the First Defendant approached them at the Ministry of Lands enquiring about leasing 3 acres of Soane’s allotment to the First Defendant. The First Defendant confirmed their evidence.
  7. The Second Defendant who happens to be the First Defendant’s brother is a senior Chief Land Registration Officer with the Ministry of Lands. Silia is in charge of the Lease Division also at the Ministry of Lands.
  8. According to the Second Defendant, Soane and First Defendant approached him around 10am to lease 3 acres from Soane’s tax allotment to First Defendant. He checked their records to confirm Soane’s holding. Once he confirmed Soane to be the holder of the tax allotment, he prepared the L9 form for them. There is inconsistency in the evidence as to who witnessed Soane’s signature but was resolved with late discovery of the L9 form by the Minister of Lands revealing it was the Second Defendant who witnessed Soane’s signature. That applied also applied to the Second Defendant’s recollection of the timing. He estimated it to have occurred in October which is clearly incorrect as it does not match the date on the L9 form he filled out. I accept the correct time to be 13 August, 2020 as on the L9 form.
  9. There was evidence that the Second Defendant then took the First Defendant and Soane to the lease division where Silia continued to assist them. Silia said the two sat in her office and she asked Soane how he got his land and he said it was through his grandfather, Sitani Mafi. Silia went through the form to ensure everything was filled out and then prepared the Cabinet submission and savingram on behalf of the Minister of Lands. Like the Second Defendant and the First Defendant, Silia also thought she had filled out the L9 from.
  10. The First Defendant filed a supplementary affidavit to correct his original assertion that it was Silia who witnessed Soane’s signature on the L9 form.
  11. The First Defendant, Second Defendant and Silia were cross examined intensely on the point. The First Defendant testified he had no access to the L9 form when he swore the affidavit of 23 February, 2023. The Second Defendant dismissively blamed his English. Silia said she worked closely with the First Defendant on his other leases and realised she was mistaken about her role in this lease application which she now recalls was limited to preparing the Cabinet submissions and savingram for the Minister.
  12. Returning to the Plaintiff’s evidence. Both Sefo and Folola deny the signature on the L9 form resembled Soane’s actual signature. Sefo stated that he was awaiting the original of the L9 to have the signature examined in the United States by experts. The original was produced by Mr. Vea at the end of the trial. Mr. Edwards objected to its production but agreed that the production at pg.327 was the same and a copy of the original.
  13. In support of his position, the Plaintiff pointed to a number of issues with the Defendant’s case. There was the inconsistency in the Defendant’s evidence as to who witnessed Soane’s signature on the L9 form; the varying accounts the First Defendant gave Folola to justify his lease. From the assertion it was out of love, later retracted; to an understanding causing him to pay Soane $1,000 and other things.
  14. Both the Plaintiff and Folola also relied on Soane’s application for a quarrying licence and say that demonstrated his intentions for his land and granting the First Defendant the subject lease contradicted those intentions. The First Defendant, the Second Defendant and Silia had never seen the licence application before.
  15. Silia, the Second Defendant and Mr Vea admitted that the file on the lease was missing. Silia recalled it was part of an audit for a petition about quarries as possible reason for its absence. Mr Vea said it was not missing but misplaced, given they had moved office 3 times since the covid-19 lockdown in 2020.
  16. It was put to Second Defendant that he should not have been involved in processing his brother’s lease. The Second Defendant said he acted in the course of his employment and his duty to the public.
  17. Both counsel filed closing submissions for which I am grateful.

Considerations


  1. The success or not of the Plaintiff’s case is dependent on whether the court accepts he has proved Soane’s signature on the L9 form is a forgery or not. This in essence is the issue in this case.
  2. The appropriate starting point is to resolve the parties’ dispute as to the standard and burden of proof. Mr Edwards submitted that the standard of proof is the civil standard of balance of probabilities and the onus had shifted to the Defendant at the point his client denied the signature on the L9 form belonged to his father.
  3. For the Defedant, Mr Corbett argued that the criminal standard is applicable and onus is the same as in a criminal case, that is, it is borne by the Plaintiff throughout the case.
  4. In Tonga, there is an established presumption, that registration is final unless it has been proven that it came about as a result of an error of law (i.e., contrary to the Act), or as a result of fraud, mistake, breach of principles of natural justice or of a promise made by the Minister or Tofi’a holder.[4]
  5. Consequently, the presumption places the onus squarely on the party challenging such registration. In this case it is on the Plaintiff. Consistent with the view in Doe d. Devine v Wilson (1855) 10 Moo. 501; [1855] EngR 708; 14 E.R. 581, a civil action dealing with an allegation of forgery of a deed, Sir John Patterson said:

“ If indeed, by the pleadings in a civil case, a direct issue of forgery or not be raised, the onus would lie on the party asserting the forgery, and this would be more like a criminal proceeding, but even then the reasons for suffering a doubt to prevail against the probabilities, would not, in their Lordships opinion, apply."[5]


  1. It is also accepted by the court that the standard of proof is not the criminal standard but one based on a preponderance of probability. In Helu v Taufa[6], the court held that fraud or mistake will vitiate a grant in any case where it is established to the satisfaction of the Court on the balance of probabilities and in Tukuafu v Tupoumalohi[7], it was held that the degree of probability required to establish proof may vary according to the gravity of the allegation to be proved. In Kuea v Fatafehi[8], it was held that a charge of forgery is a very serious charge of dishonesty and “..is the type of charge referred to by Denning L.J in Bater v Bater [1951] P35; [1950] 2 All ER 458 which requires proof to a high degree of probability.”[9]
  2. Lastly, Wang v Fund Management Ltd[2008]TOLC 2, cited Jeans v Cleary [2006] NSWSC 647, where it was held that, “...The test has been said to be whether the issue has been proved to the reasonable satisfaction of the court, such satisfaction not being produced by inexact proofs, indefinite testimony, or indirect inferences."
  3. Here, the allegation of forgery is based on the Plaintiff and Folola’s denial that the signature on the L9 form is not Soane’s. They contended his true signature is that on his request for a quarry licence and the Plaintiff told the court that he was awaiting the original L9 form to have it examined by an expert in the United States.
  4. At a very late stage of the trial, Mr Warrick Vea did provide the original L9 form which he obtained from Cabinet. Mr Edwards accepted it was the same and a copy the form produced at pg.327 of the Trial Book. The Plaintiff did not move to have the original examined as earlier indicated. In fact, on the contrary Mr Edwards submitted there was no need for expert evidence on the point.
  5. Consistent with section 76 of the Evidence Act, I have gone on to compare the signatures of Soane on the L9 form, his request for a quarry licence at pg.181of the Trial Booklet (a clearer version is at pg.6 of the Plaintiff’s bundle of documents filed on 3 May, 2023) and his signature on his Operator licence ID at pg.252 of the Trial booklet (a clearer and coloured copy is at pg.79 of the Plaintiff’s bundle of documents). In comparing the signing of “Penitani” on all 3 documents in my observation (albeit untrained eyes) look similar but I make no finding on that basis.
  6. Against Second Defendant’s evidence that he witnessed Soane’s signature on the L9 form and evidence that Soane was at the Ministry and was attended to by Second Defendant and Silia, I disagree with the notion that no expert evidence was necessary. Because as a result, the evidence of the First Defendant varying justifications for the lease, his admission to lying, the missing file, the request for a quarrying licence is what the Plaintiff rely on to prove forgery. To borrow the court’s words in Jeans v Cleary, they are inexact proofs and indirect inferences. They contribute nothing to proving forgery.
  7. For completion, I note three things Mr Edwards raised that I should address. First, the First Defendant’s credibility. I did not find the First Defendant a reliable witness. But that did not detract from the high standard and burden of proof the Plaintiff was required to meet. There was no evidence to prove that he and the officers at the Ministry made up the L9 form or colluded to unlawfully deprive Plaintiff of his heritage. His shifting accounts were questionable and unsatisfactory. But the evidence he was with Soane at the Ministry and attended to by two senior officers of the Ministry of Lands, had a L9 form prepared and signed were not sufficiently impugned by the evidence presented for the Plaintiff.
  8. Second, a complaint of perjury was made against the First Defendant in connection with his supplementary affidavit to amend his earlier affidavit deposing that Silia witnessed Soane’s signature. Perjury was not an issue properly raised for this court to deal with in these proceedings. In any event, the First Defendant explained he had no access to the L9 form when he made the first deposition and remedied the position by filing a supplementary affidavit after he received the L9 form. That was available to the First Defendant, in my view. However, that is an avenue still open to the Plaintiff to pursue with the appropriate authorities.
  9. For the above reasons, the Plaintiff has failed to satisfy the court to the high degree of probability required that Soane’s signature on the L9 form was forged and the case against the First Defendant must be dismissed.
  10. I find there was insufficient evidence to prove that the Second Defendant’s conduct in filling out the L9 form and witnessing Soane’s signature in this matter was unlawful and the case against him must also be dismissed.

Result


  1. The Plaintiff’s claims against the First and Second Defendant are dismissed.
  2. The injunction granted on 23 March, 2023 is hereby lifted.
  3. Costs in favour of Defendants.

P. Tupou KC
Acting Lord Chief Justice


Nuku’alofa: 24 April, 2024

[1] Pg.176 of Trial Booklet (TB)
[2] refer, pgs.263-275, TB
[3] pg.181, TB
[4] Havili v Kaufusi [2022] TOLC 3
[5] Cited in Middleditch & Son v Hinds [1963] NZLR 570
[6] [1995] Tonga LR 107
[7] [2002]Tonga LR 268
[8] [2011] TOLC 1

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