By Linny Folau

An action brought by Sosefo Penitani challenging the validity of a lease on his hereditary tax allotment registered in the name of another man, Pohiva Uele, claiming that his deceased father’s signature was forged, was dismissed by the Land Court, due to failure to meet the high standard of proof.

Acting Lord Chief Justice Tupou and Land Assessor, Faiva Tu’ifua heard the action made by the plaintiff, Sosefo against the first defendant, Pohiva, his brother Sione Uele (second defendant) and the Minister of Lands (third defendant). The judgment was issued on 24 April.

The action, challenged the validity of Lease No.9810 registered in the name of the first defendant Pohiva Uele. The lease consists of three acres from the plaintiff’s hereditary tax allotment, he inherited from his father, Soane Penitani, who died on 13 February, 2021. The lease was registered on 26 January, 2021.

“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. He seeks the lease be cancelled and the first defendant removed from his tax allotment and ordered to pay $1,000 per annum commencing from the date of the lease for mesne profit.”

The A/LCJ stated that the plaintiff also claimed that the second defendant assisted his brother in unlawfully obtaining and registering the lease, and the Minister of Lands was joined to facilitate and implement any orders made by this court. No defence was required of him.

On the other hand, the first defendant relied on his registered deed of lease and denied Soane’s signature was forged. The second defendant admitted to assisting his brother but said it was in the course of his employment and not unlawful.

Facts

The Land Court head that Soane’s tax allotment was registered on 26 February 2003. It consisted of an area of eight acres. He died on 13 February, 2021 and the plaintiff claimed and registered both his town and tax allotment as the heir.

Years prior to the subject lease, Soane and his wife, 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. 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 of 3 February, 2020, estimated the market value of the rocks on the tax allotment to be worth $2.5million pa’anga.

On 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 was noted that they kept up their friendship with the first defendant. On 13 August, 2020, Soane lodged a letter 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.

Critical to the case, on the same day, the second defendant and Sisilia Kalaniuvalu said 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. The second defendant who happened 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.

According to the second defendant, Soane and the first defendant approached him to lease 3 acres from Soane’s tax allotment to the 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, stated the A/LCJ.

"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 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. 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."

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.

“In addition, 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.

“Returning to the plaintiff’s evidence. Both Sefo and Folola denied that 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 (counsel for plaintiff) objected to its production but agreed that the production at pg.327 was the same and a copy of the original. 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.

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, the court heard.

Proof of forgery

The Acting LCJ stated that the success or not of the plaintiff’s case is dependent on whether the court accepted he has proved Soane’s signature on the L9 form was a forgery or not.

“This in essence is the issue in this case.”

She stated that 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.

“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.”

“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 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 three documents in my observation (albeit untrained eyes) look similar but I make no finding on that basis. Against the 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 the 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 relies 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,“ stated the A/LCJ.

“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.”

“Moreover, 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, she stated.

“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.

“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.”

The A/LCJ then ordered that the plaintiff’s claims against the first and the second defendant be dismissed, and the injunction granted on 23 March, 2023 lifted with costs in favour of defendants.