Kafovalu v Banks; Way Christian Fellowship v Vivi [2008] TOSC 8; CV 1030-2007 & CV 714-2005 (26 February 2008)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

NO.CV.1030/2007

BETWEEN:

TEVITA KAFOVALU & ANOR
Plaintiffs

AND:

ANTHONY BANKS & ANOR
Defendants

AND

NO.CV.714/2005

BETWEEN:

THE WAY CHRISTIAN FELLOWSHIP
Plaintiff

AND:

1. SIAOSI VIVI
2. SIONE VEIKOSO NONU
Defendants

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel:
Mr. Edwards for the plaintiffs in CV1030/07 and for the defendants in CV714/05,
Mr. Tu’utafaiva for the defendants in CV1030/07 and for the plaintiff in CV714/05.

Dates of written submissions: 12-14, 17-21 December 2007 and 7-11,
14-17 January 2008.
Date of Written submissions: 29 January, 15 and 22 February 2008.
Date of Judgment: 26 February 2008.

JUDGMENT

The proceedings

[1] By consent both these actions were heard together. Although the parties and issues involved in each proceeding are different, the outcome in the one will inevitably have a significant bearing on the outcome in the other. Most of the evidence was confined to what I sometimes refer to as the principal action, namely CV 1030/2007, and that will be reflected in this judgment. Unless I indicate to the contrary, therefore, this judgment will be dealing with the evidence presented in relation to the principal action.

[2] Essentially the case centres around two individuals; on the one hand Tevita Kafovalu, who along with Sione Nonu are the plaintiffs in the principal action and, on the other hand Anthony Banks, who with his wife and daughter are the defendants in the principal action. Mr Banks and his family are American citizens from California. Mr Kafovalu and his wife are Tongans but they have been living in the United States since 1983. They have six children aged between 23 years and 11 years. In 2003 Mr Kafovalu obtained American citizenship. Unless the context indicates otherwise, references to "the plaintiff" in this judgment will be a reference to Mr Kafovalu and references to "the defendant" will be a reference to Mr Banks.

[3] The dispute involves the ownership of a building erected in 2004 upon the plaintiff's town allotment at Sunia'akaveka Road, Hala'ovave, Kolomotu'a. The plaintiff seeks a declaration that the building belongs to him and his family Church, the "Way of Salvation". The defendant, on the other hand, contends that the building in question belongs to the "Way Christian Fellowship", a small religious worshipping group based in California which allegedly operates a branch in Tonga. I should preface this judgment by observing that in Tonga buildings are regarded not as fixtures attached to the land but as personal property or chattels.

The case for the plaintiff

[3] In his opening submissions, Mr Edwards helpfully referred to several distinct time periods in the relationship between the plaintiff and the defendant and he used different headings to identify each respective period. Although, in the interests of brevity, I will not follow the exact breakdown suggested by Mr Edwards, I accept that the relationship can conveniently be categorised into different historical time periods.

Period of formation of the relationship and then separation

[4] The two men first met in May 1997 when Mr Kafovalu's family who live in Riverside, California, joined up with a small worshipping group known as the Way Christian Fellowship of which Mr Banks was the President and Pastor and his wife, Mary, was the Vice President and Treasurer. The two families became extremely close. They worshipped together during the week as well as on Sundays.

[5] Mr Banks is a builder by occupation. He operates a building construction company known as "Resurrection Construction". Mr Kafovalu has worked for some 13 years as a cabinetmaker with a company called Premier Laminating Services Inc.

[6] In the year 1998 the defendant encountered financial difficulties in his business and had to sell his home. His family shifted and lived in the suite at the Business Centre in Riverside where church meetings were held. The congregation at that time consisted of approximately 4 families. The suite was divided into two areas. The front part was used for worshipping and services and the rear part was occupied by the defendant and his family.

[7] During this period Mr Kafovalu and his family supported Mr Banks assisting him financially and in other ways. It was subsequently discovered, however, that the use of part of a business suite for accommodation purposes violated the bylaws of the city of Riverside and the tenancy of the Way Christian Fellowship Church was accordingly terminated.

[8] In September 1998 Mr Banks and his family decided to leave Riverside and move to Idaho. Mr and Mrs Banks resigned from the positions they held in the Way Christian Fellowship Church. The resignations were duly accepted by the Board of Directors and at the same time Mr Kafovalu was appointed Pastor and President of the Way Christian Fellowship Church. His wife, Kalolaine, was appointed Vice President and Treasurer. Mr Kafovalu was ordained as Pastor in November 1998.

[9] In accordance with official requirements, the Secretary of State of California Domestic Non-Profit Corporations and the City of Riverside Planning Department were duly notified of Mr Kafovalu's appointment as Pastor and President of the Way Christian Fellowship Church.

[10 Mr Banks returned to Riverside from Idaho in February 2000 and he requested Mr Kafovalu to reordain him as a Pastor of the Way Christian Fellowship Church but the latter indicated that it was not the time and he will have to wait.

The period of planning and betrayal

[11] In this section I have adopted the description of the period used by Mr Edwards. In his written submissions, Mr Tu'utafaiva was critical of the heading and submitted that "the allegation of planning and betrayal appears to run like a golden thread in the plaintiff's claim." As indicated above, however, I did find it convenient to break up the complicated historical background to the litigation in this way.

[12] The period in question covers the months between February 2000 and September 2000. The plaintiff alleges that during that time, unbeknown to him and his wife and other members of the congregation of the Way Christian Fellowship Church, the defendant clandestinely went behind his back and, after surreptitiously obtaining access to the books of the church from Mrs Kafovalu, forged certain documentation and appointed himself as Chief Executive Officer, President and Pastor of the Way Christian Fellowship Church. He duly proceeded to notify the City of Riverside Planning Department and the Secretary for Domestic Non-Profit Corporations of the alleged change in the church hierarchy.

[13] When they learned of "the deception" as the plaintiff called it, other members of the congregation wanted to take Mr Banks to court over his actions but, although he was considerably upset over what had happened, Mr Kafovalu disagreed with pursuing court action. He and his wife simply withdrew quietly from the Way Christian Fellowship and the small membership started to disperse.

The period of isolation

[14] This period covered the months between September 2000 and June 2001. The plaintiff and the defendant had nothing to do with each other during these months. In September 2000 Mr Kafovalu had started holding family prayer meetings and worshipping services at his home in Riverside. He had the large garage of his home renovated so that prayer meetings could be held there and he formed a worshipping group which he called the "Way of Salvation".

[15] One of the plaintiff's witnesses described the worshipping group as something similar to the Pentecostal Church in that, "we sing and we jump and we shout out to the Lord." The plaintiff's family has obvious musical talents. Photographs and a DVD were produced showing the family playing musical instruments and singing in their converted garage. The DVD did not show any "jumping" or "shouting" but the music and singing appeared to be professional and the worshipping was presented with complete decorum. Evidence was also given as to how at one point the daughters in the family had made a CD of religious songs and then sold copies raising US $2000 in funds for a trip to Tonga.

Period of goodwill

[16] This period was identified by Mr Edwards as running from June 2001 to December 2003. Mr Kafovalu told the court that by June 2001 the congregation of the Way Christian Fellowship Church had dispersed. The fellowship ceased to have an office or place of worship and it no longer held services. Mr Kafovalu said that it was about this time that Mr Banks and his family started to attend church services and group worshipping at the Kafovalu home. The defendant's construction business was doing well and Mr Banks was generous showing much goodwilll to the Kafovalu family. In October 2001 upon the occasion of the graduation of one of Mr Kafovalu's daughters Mr Banks paid the return airfare for Mr Kafovalu and the daughter to travel to Tonga.

[17] At one point after one of the Sunday services, Mr Banks explained to Mr Kafovalu that he was operating his construction company, Resurrection Construction, jointly with the Way Christian Fellowship Church in a very profitable property development scheme which involved purchasing old houses cheaply then reconstructing or renovating them and selling them off at a high price. Because the church was registered as a charitable organisation, government grants were obtained to finance the scheme. In the year 2003, however, problems in relation to taxation on those property transactions began to surface.

[18] On another occasion during discussions after a Sunday service and meal, Mr Banks raised another issue with Mr Kafovalu which, in the context of the present case, later took on a particular significance. As Mr Kafovalu explained it:

"We continued our regular Sunday services and Sunday meals and discussions when he told me and my family that God had called him to bless me and my family. He said that he was making money and he had appreciated our association and I had not caused any trouble with him and I had saved the Way Christian Fellowship Church and he wanted to give us US $40,000 to help extend the back of a home for a living area and business area. The business he suggested was a rest home. I and my wife did not agree as we would not be able to live in our home or hold our Sunday services there. A rest home would require it to be a licensed premises and my family cannot live there or hold any services. I told Anthony Banks to keep his present and generosity for later and wait for the right time."

[19] In the second half of 2003 the plaintiff decided that he would come to Tonga and build a house on his allotment from which he would run a ministry and the building would be used as his home and as a place of worship for his relatives and friends. He described this concept as a vision he had earlier received from God. He began conducting fundraising projects for his project in Tonga (which included production of the CD by his daughters). In November 2003 he asked Mr Banks if he would give him the help he had previously offered to enable him to go to Tonga and realise his vision and he also asked whether he (Mr Banks) as a carpenter would come to Tonga and supervise the construction of the building. Mr Banks agreed to make donations and to design and supervise the construction of the building for the Kafovalus (that is admitted in the pleadings).

[20] Building materials and supplies for the project along with certain miscellaneous items were acquired during November and December 2003 and they were then packed into two containers stored at their home by Mr Kafovalu and his family. It was a major exercise. The DVD referred to earlier gives some indication of the work involved in systematically stowing all the building materials into the containers. The task appeared to be supervised entirely by Mr Kafovalu. It also appeared from the DVD that no one outside his family assisted (in his evidence, however, Mr Banks told the court that he had also assisted in loading the containers and the labourers employed were Guatemalans and Mexicans). The two containers arrived in Tonga in January 2004.

Second period of planning and betrayal

[21] Again, for this heading I have adopted Mr Edward's description. Mr Edwards likened this period to the earlier period of "planning and betrayal" he had referred to. It effectively runs from January 2004 to August 2005. Mr Banks and Mr Kafovalu arrived in Tonga in January 2004 and construction of the new building began during the first week in February. Mr Banks, as an experienced builder, had the task of making application for the building permit and other necessary consents. It was designed as a two-storey building. The ground floor would be used principally as a place of worship and the upper floor as living quarters. Construction commenced as soon as the building permit had been issued. The entire exterior of the building was finished by the end of February leaving only the electrical wiring and interior lining to be carried out before construction was complete.

[22] The building was constructed entirely of plywood which Mr Kafovalu had obtained from the company he worked for, Premier Laminating Services Inc. There is a dispute as to the monetary equivalent of the respective donations made by the plaintiff and the defendant to the construction of the building. In his pleading the plaintiff alleges that the total construction costs amounted to approximately US $75,702.94 and he estimated that of that amount $8,000 was contributed in labour and time by Mr Banks and $14,074.06 was donated by the Way Christian Fellowship Inc. The balance, the plaintiff claims, was effectively his own contribution.

[23] The plaintiff provided the construction workers who were mainly family members and friends. He said that some were paid by him for their work but most were volunteer workers. Some rough handwritten records were produced which, if accurate, showed that the total amount paid out on account of wages over the period of construction was $4,490. Payments appear to have been made on seven days and, with one exception, appear to have been for that particular day's work only. The days were 6, 7, 13, 14, 20, 21 and 24 February 2004 (one page was dated "2003"). The average number of workers on those days were 14 and the amounts paid out varied between $10 per day and $120 per day, with one exceptional payment of $250 per day.

[24] Mr Kafovalu told the court about an incident that occurred during this first visit which, in his words, made him "angry". After explaining that Mr Banks had handled all the paperwork required by the Tongan authorities relating to the building construction, he went on to tell how at one stage Mr Banks had asked him to go and find out if the building permit had yet been granted. Mr Kafovalu said that he went to the office of the Lands & Survey and he was informed by the staff that the permit could not be granted because it was not lawful for the permit to be issued to a church that never held a lease.

[25] At the same time, the Lands & Survey officer showed Mr Kafovalu the building permit application form which had been completed and filed by Mr Banks. Mr Kafovalu was concerned to note that it stated that the application was by the Way Christian Fellowship and the "Proposed Use" was shown as a "Church". He said that he was angry because it should have been in his own name and the "use" should have been shown as "residence". He inquired of the staff as to what would be necessary to make the changes and he was told that he could simply make the alterations and initial them. Mr Kafovalu said that he then telephoned Mr Banks from the Lands & Survey office and told him that the permit application form was wrong. He said that Mr Banks was apologetic and told him that he (Mr Banks) had made a mistake and he instructed Mr Kafovalu to make the necessary alterations to the permit application form. Mr Kafovalu did so, changing the name of the Applicant to "Tevita Kafovalu" and the "Proposed Use" to "Residence".

[26] At the end of February 2004 Mr Kafovalu and Mr Banks returned to the United States.

[27] In November 2004 both men again travelled to Tonga to complete the building at Hala'ovave. It was during this period that Mr Banks approached Mr Kafovalu and others while they were working on the building site and had them sign an application form to register the Way Christian Fellowship as a trust in Tonga. Mr Kafovalu told the court that there was no meeting about it and Mr Banks did not explain what his intentions were but he agreed to sign the document not thinking for one moment that the application had anything to do with the ownership of the new building. Mr Kafovalu also explained that he did not really know what he was signing because Tongan was his first language and the form was in English. He said that Mr Banks had also instructed him to sign certain other application forms during the period of construction which he was not familiar with because they were in English but, as he stressed more than once in the course of his evidence, he trusted Mr Banks.

[28] The two men returned to the States in late November 2004 and their relationship appeared to be back to normal. They continued with their services, prayer meetings and Sunday meals. According to the plaintiff the plan was that the building would be officially dedicated on 9 August 2005. The building was left in the care and custody of Mr Kafovalu's brother-in-law, Siaosi Vivi who lived in the house next door which had also been built on Mr Kafovalu's allotment.

[29] Mr Kafovalu told the Court that in approximately April 2005 he noticed a change in Mr Banks's attitude and in that same month Mr Banks left their family church at Riverside and ceased turning up for services and Sunday meals. Mr Kafovalu said that in June 2005 Mr Banks "secretly" left Riverside and came to Tonga. He said that that was after Mr Banks had received confirmation that the Way Christian Fellowship Church had been registered in Tonga as a trust. Mr Kafovalu found out from relatives in Tonga that Mr Banks was planning to open and dedicate the new building on his (Mr Kafovalu's) allotment to the Way Christian Fellowship Church and the date of the dedication had been fixed for July 10, 2005, one month ahead of the scheduled dedication date.

[30] On 22 June 2005 Mr Kafovalu telephoned Mr Banks in Tonga to find out what was going on and in the course of that telephone conversation Mr Banks told him that he (Mr Kafovalu) was no longer the owner of the land and building but he (Mr Banks) was now the owner and all the belongings in the buildings were his and he had leased the land.

[31] The Kafovalus then received a letter from Mr Banks dated 23 June 2005 posted locally in Riverside, California. It is rather lengthy but, as it assumed much significance during the trial, I set out its contents in full:

"Dear Tevita and Kalolaine,

You both have freely admitted to conspiring to defraud The Way Christian Fellowship of its property in Tonga, Tevita by admitting that he planned to get a secretary and set up a new council in the name of The Way of Salvation and Kalolaine when she said she had instructed George to change the name on the church paperwork.

I have come to you on three separate occasions, alone, with the witness, and in front of the church leadership trying to get you to repent of this course of action, that you have treated me and my ministry with contempt and disdain. Tevita even told me not to talk to the people at the church in Tonga, a church that I found it, funded, and built.

God has clearly set me to you as a gift to encourage you, to teach you, to guide you, to protect you, and to strengthen you. I have done this to the best of my ability. Both my wife, Mary, and I gave you our love, a labour, our wisdom, and our money. We held back nothing. We treated you with respect and lifted you up. How you received God's gift is not my responsibility, just like when I put an offering into the basket at church, how it is spent is not my responsibility. I do, however, still have a responsibility to the people in the church in Tonga.

I have two choices, I can let you steal the church and you are trying to steal it because it was not given, or I can prevent you from stealing it. I have chosen the latter course of action. I have chosen this course of action because Jesus said, "The thief comes not to kill, to steal, and to destroy", John 10:10. Therefore, I know the outcome before it happens, if I allow you, you will kill my vision for Tonga, you will steal the building and you will destroy the church. That is not going to happen.

In the name of the Father, Son, and the Holy Spirit, I am taking the following action:

Tevita Kafovalu, you are hereby excommunicated from The Way Christian Fellowship.

Tevita Kafovalu, your license to minister the gospel is hereby revoked.

Tevita Kafovalu, your certificate of ordination is hereby revoked.

Tevita Kafovalu, your position as assistant pastor at The Way Christian Fellowship in Tonga is hereby terminated.

Tevita Kafovalu, all of your rights and privileges as a member of The Way Christian Fellowship are hereby terminated. You may no longer minister in, speak at, and enter into, inhabit, stay at, attend or in any way utilise any facilities under the control of or owned by The Way Christian Fellowship. Your personal belongings will be removed from the church by church staff and stored under lock and key for safekeeping.

Kalolaine Kafovalu, you are hereby excommunicated from the The Way Christian Fellowship.

Kalolaine Kafovalu, your license to minister the gospel is hereby revoked.

Kalolaine Kafovalu, your certificate of ordination is hereby revoked.

Kalolaine Kafovalu, or your rights and privileges as a member of the The Way Christian Fellowship are hereby terminated. You may no longer minister in, speak yet, and enter into, inhabit, stay at, attend or in any way utilise any facilities under the control of or owned by the The Way Christian Fellowship. Your authority is terminated.

This course of action will be explained to the congregation in both Riverside and in Tonga and copies of this letter will be placed in both churches.

Sincerely,

Anthony Banks

Founder, Pastor and President

The Way Christian Fellowship

P.S. To Kalavini and Vika,

Don't think what you've done has gone unnoticed by God."

[32] Mr Kafovalu said that when he received that letter from Mr Banks he realised that the latter had "cheated" on him.

[33] The next development in the narrative occurred on 6 July 2005 when the plaintiffs in the principal action (Mr Kafovalu and Mr Nonu) issued proceedings against the defendants (Mr Banks and his family) in the Land Court and at the same time applied for an injunction restraining the defendants from trespassing on the plaintiff's allotment or using any part of the new building on the land. Their legal counsel at that stage was Mr 'Etika. The pleadings alleged that, unbeknown to Mr Kafovalu, Mr Banks had made an early move to come to Tonga and announce himself to be the new leader and he had advised the six families who had newly converted to the faith in Tonga that Mr Kafovalu had been excommunicated and the official opening of the Church in Tonga had been bought forward to 10 July 2005.

[34] Mr Banks filed an affidavit in opposition to that injunction application in which he claimed that he had reached an agreement with Mr Kafovalu in January 2004 to construct the building in Tonga for The Way Christian Fellowship and in March 2005 Mr and Mrs Kafovalu had reneged on that agreement and wanted to change the name of the church to The Way of Salvation. The injunction application came before Chief Justice Webster who on 8 July 2005 declined the plaintiff's application for interim relief. Mr Banks was, therefore, free to proceed with his official opening of the new building. The "Dedication & Blessing" duly took place on 10 July 2005.

[35] Notwithstanding that development, the Kafovalu family still proceeded with their plans to travel to Tonga in early August 2005. Mrs Kafovalu told the court that the visit was going to be the first real opportunity for her six children to catch up with their Tongan relatives. She told the Court that she was quite shocked when the family pulled up outside their allotment on the afternoon of 11 August 2005 and saw a security guard on duty and a large sign which had been erected in front of the new building, which was supposed to be their own residence, which was headed "THE WAY CHRISTIAN FELLOWSHIP". The sign stated "Founder/Pastor/President -Anthony Banks". It also had the words, "Pastor -- Jimmy (Simi) Florian". There was another heading "Deacon" but the name of the Deacon had been deleted.

[36] Mr Kafovalu said that he had a discussion with Mr Banks on that occasion but there was no reconciliation. He described Mr Banks as been remorseful and apologetic. He said that Mr Banks cried and apologised to him saying: "I'm sorry for what I have done wrong -- the devil tried to separate us -- friendship." Mr Kafovalu was challenged about this evidence in cross examination but he confirmed that it was true. Counsel asked him what he understood when Mr Banks said that he had "done wrong". Mr Kafovalu replied: "First, our intention was to construct my building for religious worship. Secondly, he came ahead without us having any understanding. He chased me out of my house and land and it was guarded by security."

[37] Mr Kafovalu added that on the following day Mr Banks told him to remove his (Mr Banks's) name from the sign in front of the building and put in his own name but Mr Kafovalu did not consent to it because he had no intention to have a church on the property. As he emphasised on numerous occasions throughout his cross-examination, it was his intention to build a dwelling house for family religious gatherings -- not a church.

[38] Mrs Kafovalu's version of their arrival that day was slightly different. She said that as the family approached the building on that occasion they were told by the security man to go back out onto the road. Mr Banks was present but he refused to let the Kafovalus enter the building. He waved papers at them and told them that they had no right to come onto the property and they should go and see Justice Webster. Mrs Kafovalu told the court that she would never forget that night because they were prevented from entering their own property and they had nowhere else to go. She said that the family lay down by the roadside with the children using their suitcases as pillows. Later in the night it began to rain and Mrs Kafovalu said that at that point, in desperation, she went and obtained accommodation elsewhere.

[39] The following day they consulted another law practitioner, Mr Laki Niu, who confronted the security man and Mr Banks and attempted to persuade them to allow the Kafovalu family to enter the building but he apparently was unsuccessful. The family ended up staying with a relative at Fasi. They returned to the States approximately 2 weeks later. That, in essence, was the thrust of the evidence given by the plaintiff and his wife.

[40] One of the witnesses called for the plaintiff was 40-year-old Siaosi Vivi. He is married to Mrs Kafovalu's younger sister,Seini, and as noted earlier, they live in the house on Mr Kafovalu's allotment right next door to the building in question. He told the Court that he first met Mr Banks when he and Tevita Kafovalu arrived in Tonga from the United States on 29 January 2004. He said that he clearly recalled his conversation with Mr Banks that day when the latter said that God had told him to give US $20,000 to Tevita (Mr Kafovalu) and he didn't do it. He said that after one week God spoke to him again and asked him to double that amount and make it US $40,000. He told Mr Vivi that he was in Tonga to build a house for Tevita.

[41] The witness told how he and his family worked on the new building on a voluntary basis without payment because it was to be a house for Tevita and his family Church. He also allowed his taxi and van to be used without charge every day during construction. He said that if he had known it was a building for Mr Banks's Church then his family would not have worked for free or provided the vehicles. In cross examination he was shown the pay records referred to earlier which showed that one of his sons had received $20 per day on some occasions. The witness said that he was unaware of that but, in any event, he condemned the amount as derisory.

[42] Although it was not included in his written brief of evidence, Mr Vivi told about a discussion he had with Mr Banks prior to the opening of the new building. Mr Vivi confirmed that the official dedication had been planned for August 2005. Later he learned that Mr Banks had arrived early from the United States and he was proposing to bring the dedication forward from August to July. Mr Banks asked Mr Vivi if he would be the Deacon and he told him that Tevita would not be involved any more because he had been excommunicated. Mr Banks said that he wanted Mr Vivi and his wife to speak at the opening ceremony and he gave him some items so that he and his family would agree to what he was proposing. One of the items he gave him was a silver ingot bar (which was produced as an exhibit) and he also told Mr Vivi that he would build him a house at Popua so that he could have his own home and if Tevita was going to be upset because of the early dedication ceremony then he (Mr Banks) would pay to put him up in other accommodation in Tonga ( the implication presumably was that, in anger, Tevita might attempt to evict Mr Vivi from his home which stood on Tevita's allotment).

[43] Mr Vivi said that during the same conversation Mr Banks spoke to him about the type of business that could successfully be set up in Tonga. In this regard he mentioned lawn mowing, importing floors and operating a catering business. Mr Vivi turned down the various propositions put to him that day by Mr Banks. He told the Court that what Mr Banks was doing was completely different from what had been proposed when they first started working on the new building. He formed the view that Mr Banks was "a very dangerous person to get involved with." Mr Banks then removed Mr Vivi's name which had been painted on the sign at the front of the new building under the heading "Deacon". He also took back the key to the building which Mr Vivi had and took away the responsibility he had earlier given him of looking after the building. Mr Vivi did not attend the July opening of the building.

The case for the defence

[44] It is not easy to summarise the evidence given by the defendant, Mr Banks. His evidence in chief was presented in the form of a booklet affidavit which, along with the exhibits, amounted to 126 pages. His cross-examination took place over a period of four days. He denied what the plaintiff had said about what Mr Edwards termed "the first period of planning and betrayal". He said that upon his return to Riverside from Idaho, Tevita Kafovalu asked him to take over the English-speaking congregation of the The Way Christian Fellowship while he would take the Tongan congregation. He did admit that from September 2000 Mr Kafovalu held regular family prayer and worshipping meetings at his home in Riverside and as from the first half of 2001 his family (the Banks family) attended the prayer meetings and worshipping services at the Kafovalu family home. He also agreed that the Kafovalu family group was called The Way of Salvation Church and that it still operates in Riverside, California.

[45] Mr Banks accepted that the Kafovalu family had helped him out and been very generous during his difficulties and, in return, he had offered to build a rest home as an addition to the Kafovalu family home. He also admitted paragraph 44 of the plaintiff's statement of claim which described the origins of the Tonga building project in these terms:

"Two years later, on or about the month of November 2003 the first plaintiff (Mr Kafovalu) asked the first defendant (Mr Banks) whether he could come to Tonga to construct the building and for the first defendant to help the first plaintiff in fulfilling his vision and calling from God. The first defendant agreed to help, donate and construct the building for the plaintiffs."

[46] Mr Banks strongly maintained that the intention all along was that the building would be a church and that it was never intended to be a residence for the Kafovalu family. He contended that initially the building was going to be a church for The Way of Salvation. On 29 December 2003 he had Mr Kafovalu sign a letter which he (Mr Banks) had prepared on The Way of Salvation letterhead addressed to The Way Christian Fellowship Inc thanking Pastor Banks for his donation in the amount of $14,074.06 "for the church we are building in Nuku'alofa, Tonga, South Pacific next year." Attached was a list of the items donated. Mr Banks said that under American law any donations to the building of a church building on foreign soil are a legitimate tax deduction and he confirmed that he claimed the deduction in this case.

[47] In cross examination Mr Banks accepted that The Way of Salvation was the name of the worshipping group for Tevita Kafovalu and his family. He was closely cross examined, therefore, as to when he alleged the building became the property of his worshipping group, The Way Christian Fellowship. His answers were somewhat equivocal. At one point he seemed to suggest three possible dates but in the end he appeared to pinpoint January 2004 as the month when The Way Christian Fellowship took over the building. The morning after that exchange in cross examination, Mr Banks asked the Court if he could make a statement. He then said this:

"Mr Edwards asked me when did I first decide to name the church The Way Christian Fellowship and I replied between 2 February 2004 when we lodged the permit application and 22 February 2004 when the constitution and bylaws arrived from the USA. When I got home I thought about it. The correct answer is between 29 January 2004 when we arrived and 2 February 2004 when we applied for the permit." Later still in his cross-examination, Mr Banks claimed that Tevita Kafovalu had never had possession of the building because it belonged to The Way Christian Fellowship and it had been intended to be that way from the very beginning.

[48] Mr Banks accepted that there was nothing in writing recording a transfer from the Kafovalus or The Way of Salvation to The Way Christian Fellowship and so he was further cross examined as to the basis upon which he claimed that such a transfer had taken place. Again, his evidence was somewhat equivocal. He claimed that when it came time to present the paperwork for a building permit Mr Kafovalu did not have the necessary paperwork for The Way of Salvation to be registered as a trust in Tonga and so he and Mr Kafovalu agreed that the permit would be applied for and the building built in the name of The Way Christian Fellowship. The evidence he relied upon to confirm the transfer was then identified as principally three documents produced as exhibits by Mr Banks which were associated with the construction of the building. They assumed some significance in the evidence and so I will identify each of them in turn.

[49] The first was the Ministry of Works Building Permit Application Endorsement form dated 30 January 2004. It showed handwritten entries recording the Owner as "The Way Christian Fellowship" and the Project as "Residence". The original document was not produced but the word "Residence" appears to have been written over a deleted word.

[50] The second document is a Ministry of Health "Check List/Construction Application." It shows the "Name of Applicant" as "Tevita Kafovalu"; the "Proposed Use" as "Residence " and the "Name of Owner" is shown as "Anthony Banks". In the body of the form there is a heading, "Type of Project" and again the word "Residence" appears. This is an important document. It is the document which Tevita Kafovalu had said in evidence "made him angry" because originally it had shown the name of applicant as Anthony Banks and the proposed use as "church". A description other than "residence" had also obviously appeared under the heading in the body of the form "Type of Project" but it is impossible to make out the deleted words. After the alterations were made, Tevita inserted his initials and the date " 2.2.04".

[51] The next document dated February 3, 2004 is a letter from the Tonga Fire Service setting out the fire safety requirements for construction. In that letter the "Applicant" is described as "The Way Christian Fellowship", the "Owner" as Anthony Banks and the "Proposed Use" as "Church Fellowship Building".

[52] When these documents had been put to Mr Kafovalu in evidence, he said that they had all been completed by Mr Banks and he had not been aware of the first and third documents. Mr Kafovalu said that in the one document he had seen, which is the second document referred to above, he had taken exception when he had seen "The Way Christian Fellowship" listed as the applicant and the proposed use as "church" and so he had changed the wording as described. During his cross examination Mr Banks was asked why he had shown himself as the owner on the second and third documents. He answered, "Because I was the one building the building."

[53] Mr Banks produced and also made numerous references to another document identified as an application form for registering a Board as a trust under "the Charitable Trust Act 1993". That was an application form completed by Mr Banks to have The Way Christian Fellowship registered as a Trust in Tonga. It was signed by six people described as the Trustees, including Tevita Kafovalu. It is undated but it would appear from other accompanying documentation that it probably came into existence on or about 29 November 2004. It is the document also referred to in paragraph [27] of this judgment where it is noted that Mr Kafovalu explained that he did not know what he was signing because Tongan was his first language and the form was in English.

[54] I did not find Mr Kafovalu's explanation in this regard convincing. I believe that he was aware at the time that the document he was signing was an application to register The Way Christian Fellowship under the Charitable Trust Act in Tonga. Why he disputed that proposition is something of a puzzle. It marred, what was otherwise, his convincing and credible testimony. Putting that indiscretion to one side, I do not find that the document in question helps advance Mr Banks's case. It relates only to the incorporation of The Way Christian Fellowship. As Mr Banks had to accept in cross examination, there was nothing in that particular document which showed that the trust had been formed to take over the building in question.

[55] Mr Banks also admitted that there was nothing in writing whatsoever to indicate that Tevita Kafovalu had ever agreed to lease his allotment to The Way Christian Fellowship or any other church group. Mr Banks had earlier claimed that in one of their discussions Tevita had agreed to lease the land to the Church for $1. That proposition was strongly denied by Tevita.

[56] Mr Banks admitted having offered to build a rest home at the rear of the Kafovalu's home in Riverside at a cost of US$40,000 but, contrary to Mr Kafovalu's claim, he denied having agreed to donate that same sum towards the construction of the building in Tonga. At one point in the course of his cross-examination, Mr Banks said that he estimated the value of the building when completed "including the land" at $150,000 and he estimated the contribution he had made individually or through The Way Christian Fellowship at $60,000. I did not find this evidence convincing, however, nor was it supported by any reliable documentary evidence. During the hearing, the Court took a view of the building in question. It does not appear to have been properly maintained. It is now in a rundown and dilapidated state.

The second set of proceedings (CV 714/2005)

[57] In this proceeding which was issued on 1 November 2005 the plaintiff is The Way Christian Fellowship and the two defendants are Siaosi Vivi and Sione Veikoso Nonu. Vivi and Nonu are related to Tevita Kafovalu through marriage. Mrs Vivi and Mrs Kafovalu are Sione Nonu's sisters. Sione Nonu also has another sister, Vika, who lives in the United States. Vika is married to Kalavini Tonga, a school bus driver in Riverside, California. Kalavini travelled to Tonga to give evidence in this proceeding.

[58] In itself this claim should not be occupying the time and attention of this Court. It follows on from the July 2005 land case referred to earlier when Tevita Kafovalu and Sione Nonu were unsuccessful in their application to have Mr Banks and his family evicted from Mr Kafovalu's town allotment upon which the building in question is situated.

[59] In this proceeding it is alleged by Mr Banks, on behalf of The Way Christian Fellowship, that between August and October 2005 Siaosi Vivi and Sione Nonu broke into "the church building of the plaintiff" (The Way Christian Fellowship) and removed property belonging to the plaintiff. The property is identified under six headings, namely:

(a) Musical Instruments (10 items);

(b) Appliances (two fans and a refrigerator);

(c) Tools (one Orange Chicago half inch drill);

(d Church Office (Account Book, Bank passbook, All receipts, stationery and transaction records);

(e) Furniture (2 folding tables, 4 folding chairs, 1 pulpit, 15 various religious pictures);

(f) Sunday school supplies (papers, pencils, crayons, markers).

[60] At the same time as the writ was filed in this proceeding back in November 2005, The Way Christian Fellowship filed an ex parte application for interim orders. The application was supported by affidavits filed by Anthony Banks and a Jim Florian, a Fijian national married to a Tongan who Mr Banks in July 2005 had appointed as a Pastor of The Way Christian Fellowship. The orders sought were granted by Chief Justice Webster on 1 November 2005. They required the defendants to forthwith return to the plaintiff all the property described above.

[61] That order gave rise to much bitterness and infighting between Mr Banks and the Florian family on the one hand and the Vivi and Nonu families, who were related to Tevita Kafovalu's family, on the other. The Florian family lived in a rented house immediately behind the building in question. The Vivi family lived in a small house immediately alongside the building in question. There was evidence about the locks on the building in question being changed by the respective factions on approximately 9 occasions and at one stage the whole front door of the building had been removed. There was evidence also about abusive exchanges and physical fights between Mrs Vivi and Mrs Florian. On one occasion Mrs Florian's teenage daughter ripped Mrs Vivi's washing from the line, tore it up and trampled it into the mud. The matter went back to Court and Justice Webster found Siaosi Vivi and Sione Nonu in contempt of Court and gave them a suspended prison sentence.

[62] In his written judgment in relation to the committal hearing, the former Chief Justice remarked: "I am sorry to say I was shocked to find that there was little evidence of the Christian virtues of loving your neighbour or forgiveness by any of the parties -- we pray in the Lord's Prayer "forgive us our trespasses, as we forgive them that trespass against us", but that does not seem to have been happening on either side." It is evident from the present 17 day hearing that His Honour's words fell on deaf ears.

[63] In essence, the cause of all this bitterness was that the Vivi and Nonu families were adamant that the musical instruments did not belong to The Way Christian Fellowship as claimed by Mr Banks but that they had been purchased by Kalavini Tonga in the States and sent out to Siaosi Vivi in Tonga for his two sons who were living with the Vivi family.

[64] With the making of the interim orders back in November 2005, the reality is that this particular proceeding is no longer extant. Evidence as to the whereabouts of the various items in question was vague and unconvincing. In cross examination, Mr Florian expressed considerable uncertainty when asked about the items listed under (b) to (f) above.

[65] The position regarding the musical instruments is more significant, however, because of the basis upon which The Way Christian Fellowship claims ownership of the same. In his affidavit, sworn on 1 November 2005, filed in support of his application for an injunction, Mr Banks deposed that the musical instruments and other property belonged to The Way Christian Fellowship and he annexed to his affidavit two documents which he claimed proved that proposition. The first was a copy of a bill of lading, number LAX 01650 with the shipment manifest annexed and the second was a copy of the quarantine entry, number 133113. The significance of the bill of lading was that it showed that the consignment that apparently contained the musical instruments and other goods, was consigned by Kalavini Tonga from Riverside, California, on the 14th of February 3, 2005 to: "SIAOSI VIVI (REV) THE WAY CHRISTIAN FELLOWSHIP TONGA". The quarantine entry form showed in the box at the top of the document headed " Importer and address", the words "The Way Church C/O Siaosi Vivi Nuku'alofa".

[66] The evidence was that the entry in the quarantine form described above had been completed in Tonga by or on instructions from Mr Banks and so I place little reliance on that. The delivery address on the bill of lading, however, was more significant. The bill of lading was completed by " S.F. ENTERPRISES" a General Freight firm based in Long Beach, California. On the face of it, therefore, the reference to The Way Christian Fellowship in the delivery address added credence to Mr Banks's claim that the musical instruments and other goods in the consignment were owned by The Way Christian Fellowship.

[67] The defence in this proceeding, however, called evidence from Kalavini Tonga which challenged this assumption. Mr Tonga presently works as a school bus driver in Riverside but prior to October 2006 he was employed for 25 years as a supervisor in the loading and unloading of aircraft at Los Angeles International Airport. Mr Tonga gave evidence that he and his wife Vika regularly send clothing, food, gifts and miscellaneous items to Siaosi Vivi in Tonga because two of their sons are being raised by Siaosi Vivi and his wife, Seini (Vika and Mrs Vivi are sisters). Mr Tonga told the Court that he had purchased the musical instruments, packed them and sent them with other goods to Siaosi Vivi for his children. As he put it:

"I have spent money to come here to give evidence because I am most disturbed with Mr Banks's claim that he has a right to musical instruments which I purchased and sent to Siaosi Vivi for my children. Mr Banks or his church has nothing to do with what I regularly send to Siaosi and his family. Mr Banks is trying to explain the bill of lading which the shipping company issued but he knows very well he has NO right to the musical instruments I send my family."

[68] Mr Tonga was referred to the bill of lading Mr Banks had been relying upon. He noted that Siaosi Vivi was not a minister or pastor and he contended that the word "Rev" in brackets which appeared after Siaosi Vivi's name had been added subsequently to the bill of lading as had the words "The Way Christian Fellowship Tonga".

[69] Mr Tonga told the court that when Siaosi Vivi contacted him in October 2005 and informed him that the church was claiming the musical instruments he went along to S. F. Enterprises in Long Beach, California and enquired as to how Mr Banks had received a copy of the bill of lading for his shipment to Siaosi. He said that the lady he dealt with at S.F. Enterprises, Soana Moimoi, explained that she had subsequently changed the wording of the bill of lading in accordance with instructions she had received from Mr Banks that the property was for the church. Mr Tonga told the court that he was angry when he found this out and he threatened to sue S. F. Enterprises. The company apologised to him and co-operated in making copies of other documentation available to him.

[70] A letter was produced from Soana Moimoi on S.F. Enterprises letterhead dated 1 November 2005 addressed to, "To Whom It May Concern". The relevant extract from the letter reads as follows:

"I Soana L Moimoi working at S. F. Enterprises as Office Manager and I want to provide you with this information of Antony Banks (sic) who gave you a wrong information about the crts that Mr Kalavini Tonga and his wife came to the office and paid to me in cash to ship this crates to their cousin Siaosi Vivi and all the stuffs in the crates they both buy this stuffs and it was none of the stuff belongs to the Church or Antony Banks.

And another things Anthony does he call me to fax the received of Kalavini to him and I did not know he was trying to come to Tonga to claim this things but it was not his stuffs or anythings belong to the church. He have no right at all to this crates everythings belong to Kalavini Tonga and his wife.

I would like to let you know I will be in Tonga in December 15, 2005 if you want me to come to the court I will come and told Antony Banks he have no right at all to this crates or the churches and he is a big lie and I don't know how will be somebody will come and try to claimed somebody stuffs.

Please let me know maybe you will postpone until I come to Tonga that way I will tell Anthony Banks he don't have anything in this crates."

[71] For his part, Mr Banks strongly denied giving instructions to Soana Moimoi or anyone else to alter the delivery wording on the bill of lading and his counsel submitted that nowhere in her letter did Ms Moimoi state that Anthony Banks had told her to insert the words "Rev" and "The Way Christian Fellowship Tonga" on the bill of lading.

Conclusions

[72] I say at once that I find it unfortunate that this case should have occupied 17 valuable sitting days of this court. With a little goodwill on both sides I am sure that a sensible compromise could have been agreed to but the parties could not even reach agreement on having the matter referred to mediation. In his reserved decision dated 6 April 2006 in relation to the contempt of court proceedings, where the parties effectively were Mr Banks and Mr Florian on the one hand and Siaosi Vivi and Sione Nonu on the other, Chief Justice Webster referred to the litigants as being "equally intolerant and inflammatory". His Honour also made the point which I fully endorse in relation to the present case that, "the hearing could have been completed in a much shorter time."

[73] The more significant observation made by the former Chief Justice was in relation to the issue of credibility. His Honour said:

"I regret that I was unable to accept any of the witnesses who gave oral evidence as entirely credible and reliable. Pastor Banks did not give straight answers to questions in cross examination; Pastor Florian was theatrical and appeared to be carried away in a trance rather than giving reliable evidence; and some of Mr Vivi's answers were inherently improbable. . .

As I indicated earlier, I did not consider either of the plaintiff's witnesses (Banks or Florian) completely credible and reliable . . ."

[74] To my mind the issue of credibility is central to this case. I regret that I formed a similar opinion of the oral evidence given by Mr Banks and Mr Florian to that expressed above by Chief Justice Webster. In fact, I would go further and delete reference to the adverbs "entirely" and "completely". In short, I found Mr Banks's version of the relevant events vague and inherently implausible. I find that by a complex web of deception he systematically embarked on a process deliberately designed to enable him to take control for himself of Tevita Kafovalu's allotment in Tonga and the building that had been erected thereon for Tevita Kafovalu's family.

[75] On the other hand, with the one exception I refer to in paragraph [54], and one or two other inconsequential inconsistencies, I found the evidence given by Mr and Mrs Kafovalu and Mr Kalavini Tonga credible and reliable and I accept their version of events.

[76] Exactly what Mr Banks's motives were remains unclear. I am satisfied that the list of donations which he drew up in the States on The Way of Salvation letterhead and had Tevita sign, which he now claims is evidence of Mr Kafovalu's intention to transfer ownership of the building in Tonga to The Way Christian Fellowship, was primarily designed for taxation purposes. Whether his other surreptitious actions were also motivated by taxation advantages he could foresee for his building construction company was not established on the evidence. In all events, even without establishing a motive, the plaintiffs in the principal proceeding (1030/07) have succeeded in making out their case and judgment is entered accordingly.

[77] The plaintiffs are entitled to the remedies sought along with costs to be agreed or taxed. Mr Edwards is to file an appropriate draft judgment.

[78] For the reasons just expressed, the plaintiff, The Way Christian Fellowship, in the other proceeding (CV 714/05) fails in its claim against Siaosi Vivi and Sione Nonu. The defendants in that action are also awarded costs to be agreed or taxed.

NUKU'ALOFA: 26 FEBRUARY 2008

CHIEF JUSTICE