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Penitani v Uele [2024] TOCA 20; AC 13 of 2024 (20 November 2024)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION
NUKU’ALOFA REGISTRY

AC 13 of 2024
[LA 03/2023]

BETWEEN

SOSEFO PENITANI
Appellant

AND
POHIVA UELE
First Respondent

AND
SIONE UELE
Second Respondent

AND
MINISTER OF LANDS
Third Respondent

Hearing: 14 November 2024

Court: Randerson J, Heath J and Dalton J

Counsel: William Edwards for Appellant
David Corbett for First and Second Respondents
Linda Folaumoetu’i SC Attorney-General for Third Respondent

Judgment: 20 November 2024

__________________________________________________________________________

JUDGMENT OF THE COURT
___________________________________________________________________________

Introduction

[1] The appellant Sosefo Penitani is the registered owner of a tax allotment of approximately eight acres which he inherited from his late father, Soane. On 26 January 2021, the first respondent Pohiva Uele became the registered holder of Lease 9810 for three acres of the allotment. He intended to use it for quarrying purposes and did so for a period before the issue of an injunction in the proceedings below obliged him to cease operations.
[2] The dispute between the parties revolves around a signature on the application for the lease purporting to be that of Soane. The latter has since died but Sosefo alleges that the signature is a forgery and that his father had not agreed to a lease. Sosefo sought a declaration that the lease was of no effect and an order that it be cancelled. He also sought mesne profits of TOP $1000 per annum from the commencement of the lease. Primary relief was sought against Pohiva but it was alleged that the second respondent Sione Uele assisted Pohiva in obtaining the lease. The two are brothers.
[3] In the Supreme Court, Acting Chief Justice Tupou KC found there was insufficient proof of forgery and dismissed Sosefo’s claims. She lifted the interim injunction restraining Pohiva from quarrying the land. Acting Justice Langi has since granted a stay of the judgment of the Supreme Court pending appeal.^[1]

Factual background

[4] The facts as found by the Judge can be briefly stated. Soane became the registered owner of the tax allotment on 26 February 2003. Some years later in 2020, he and his wife, Folola returned to Tonga from the United States for the purpose of developing and operating a quarry on the land. In February that year they returned to the United States having obtained a report from a Mr Mafi on the value of the land for quarrying purposes. This placed an estimated value on the coral rock on the property assuming a quarry of 3.2acres at TOP$2.5 million. Soane’s intention was to tidy up their affairs and bring back to Tonga necessary equipment to operate the quarry.
[5] Two key events occurred on 13 August 2020. Soane lodged a letter dated 12 August with the Minister of Lands applying for a quarry licence for the land. Soane stated in his letter that he wished to create a source of income for his family and that although many companies had applied to lease the allotment he did not consent to this and wished to conduct his own work on it. There is no evidence that this application was ever progressed.
[6] Although there was initially some discrepancy as to dates, the Judge found that on the same day, Soane and Pohiva approached the Ministry of Lands inquiring about leasing three acres of the land to Pohiva. On that day they met with Sione, who is the Senior Chief Land Registration Officer with the Ministry of Lands and also with Silia Kalaniuvalu, who is in charge of the lease division at the Ministry. Sione’s evidence was that he checked the relevant records to confirm Soane’s registered holding of the tax allotment and that he prepared the L9 form of application for a lease. The Judge found there was some inconsistency in the evidence as to who witnessed Soane’s signature on this form. Pohiva had originally suggested that Silia was the witness but the issue was resolved by the late discovery of the L9 form by the Ministry of Lands which showed that Soane’s purported signature was in fact witnessed by Sione.
[7] The Judge recorded there was evidence that Sione then took Pohiva and Soane to the Lease Division where Silia assisted them. There was discussion about how Soane had obtained his land. 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. The L9 form states that the lease was to be for quarrying purposes with a 20 year term and an annual rental of TOP $100. These terms were repeated in the Cabinet submission subsequently approved.
[8] As could be expected, there was intensive cross-examination about the events surrounding the completion of the L9 form, Sosefo asserting that it was forged by Pohiva with the assistance of his brother. Sosefo and Fololo both denied the signature on the form resembled Soane’s genuine signature. Sosefo stated he was awaiting the original of the L9 form to have the signature examined in the United States by experts.
[9] It was not until the end of the trial that the original of the form was produced by Mr Warrick Vea, an officer of the Ministry of Lands. Although the Land Registry file had been lost, an original signed lease was located in the Cabinet records. Although trial counsel Mr WC Edwards SC objected to its production, he agreed that the copy of the form in the trial booklet was the same as the original. As it turned out, Sosefo did not seek to have the original form examined as earlier indicated and his counsel Mr Edwards SC ultimately informed the Court below there was no need for expert evidence on the point.
[10] The lease itself is signed by the Minister on behalf of the Kingdom and by Pohiva as lessee. It reflects the terms already identified save for any reference to quarrying. However the lessee covenants that he will not use the land for any purpose other than that upon which the application was approved. The rent is reviewable every five years and the lease expires in 2041.

Burden and Standard of Proof

[11] There was argument at trial about the burden and standard of proof. Mr Edwards SC submitted that the standard of proof was the civil standard of balance of probabilities and that the onus shifted to Pohiva at the point Sosefo denied the signature on the L9 form belonged to his father. Mr Corbett submitted at trial on Pohiva’s behalf that the criminal standard applied and that the onus lay with Sosefo throughout.
[12] The Judge noted that in the Kingdom of Tonga, the established presumption is that registration is final unless it has been proven to come about as a result of error of law, fraud, mistake, breach of natural justice or a promise made by the Minister or Tofi’a holder.^[2] The Judge found that, in consequence, the presumption placed the onus squarely on the party challenging the registration.
[13] Tupou ACJ adopted the civil standard of proof but noted authority to the effect that the degree of probability may vary according to the gravity of the allegation to be proved.^[3] She cited authority^[4] stating that forgery is a very serious charge of dishonesty requiring proof to a high degree of probability. On appeal, Mr Corbett accepted this formulation.

The Judge’s Findings

[14] We set out in full the Judge’s key findings:

34. 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.181 of 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.
35. 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.

[15] Dealing with Sosefa’s credibility, the Judge said:

36. ... 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 the 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.

[16] The Judge concluded^[5] that Sosefo had failed to satisfy the Court to the high degree of probability required that Soane’s signature on the L9 form was forged. She also found there was insufficient evidence to prove that Sione’s conduct in filling out the L9 form and witnessing Soane’s signature was unlawful. The claims against both Pohiva and Sione were dismissed accordingly and the interim injunction restraining Pohiva from operating the quarry was lifted.

The arguments on appeal

[17] Sosefo’s notice of appeal essentially raises two issues:

• (a) The Judge had erred in relation to the standard of proof.
• (b) Her conclusions were not supported by the evidence, and she ought to have found on the evidence that forgery was proven to the required standard.

[18] As to the first, Mr William Edwards submitted that the standard of proof was the civil standard of the balance of probabilities but he accepted that the proof required may be stronger depending on the gravity of the allegation citing the judgment of Lord Nicholls in Re H.^[6] On the second limb, on counsel’s argument, the notice of appeal identifies a range of points which may be summarised as follows: the Judge agreed that Pohiva was not a reliable witness; he had given a number of conflicting reasons in an endeavour to explain why Soane would be willing to allow him to take a lease of the land; there had never been any explanation about why Soane would be willing to grant a lease to Sosefo for quarrying purposes when, on the very same day, he was applying for a quarrying permit for the land for himself; there were suspicious circumstances surrounding the grant of the lease including the Ministry having lost the relevant file and varying accounts being given by Sione and Silia Kalanivalu about the circumstances surrounding the completion and signing of the L9 form for the grant of a lease; and that Sione had deleted certain Facebook messages between himself and Soane’s wife, Folola.
[19] In his oral submissions Mr Edwards reiterated these points submitting that it was improbable that Soane would have agreed to such an improvident bargain given the value of the land and his evident intention to quarry it himself. Pohiva’s shifting explanations to explain why Soane would be willing to lease the land on terms so unfavourable to himself and Pohiva’s admission he had lied in the Facebook messages to Folola all supported the inference that Soane’s signature had been forged.
[20] Mr Edwards also raised a further issue about the absence of any agreement to quarry the leasehold land. He submitted that Pohiva had never produced any agreement to pay the lessor for the coral rock and/or topsoil removed from the land.
[21] Counsel relied on the decision of this Court in Uhi v The Kingdom of Tonga^[7] as to the nature of the reversionary interests of the holder of the leasehold interest. In that case, a lease had been granted by Mr Uhi to the Kingdom of Tonga for the removal of coral rock and for the payment by the Kingdom to Mr Uhi of a royalty. However, in terms of the mineral lease in that case, no royalty was payable on the sale of the overburden and this Court held that the Kingdom was not entitled to dispose of it or to authorise the lessee to do so. The overburden could be moved elsewhere or off the site as long as it remained available to the leaseholder at the end of the lease.^[8]
[22] This Court held that the mineral lease in that case was not a sale of the overburden and although its severance and removal was not a trespass, its disposal was wrongful and a conversion injurious to the leaseholder’s reversionary interest. It was held that Mr Uhi was entitled to have the overburden available to him at the expiration of the lease.^[9] It followed that Mr Uhi as the reversioner was entitled to maintain an action in tort for an injury to the property which damaged the reversion.^[10]
[23] Mr Edwards submitted that even if the lease in the present case were valid, it did not confer any right for Pohiva to quarry the land. The lease contains no reference to quarrying and no royalties or other payment was provided for. The only consideration provided for in the lease is $100 per annum.
[24] In consequence, Mr Edwards submitted that if his primary argument failed, Sosefo was entitled to maintain an action for damages or mesne profits based on the tort of conversion.

Discussion

Burden and standard of proof

[25] We are unable to accept there was any error in the approach by the Judge to the burden and standard of proof required. Sosefo was required to prove on the balance of probabilities that his father’s signature on the L9 form was forged. A mere allegation of forgery was not sufficient to alter that burden whether on an evidential basis or otherwise. We also agree with the Judge that the strength of the evidence required may vary according to the gravity of the allegation to be proved. Given that an allegation of forgery is a serious charge of dishonesty, we agree with the Judge that cogent evidence was required to satisfy the Court on the balance of probabilities that Saone’s signature was forged. In this case there was no direct evidence of forgery and it could only be proved by inference from the surrounding circumstances.

Was the Judge correct to find that the allegation of forgery was not met?

[26] The only witnesses directly involved at the time the L9 form was signed were Soane, Pohiva, Sione and Silia. Although the Judge was well entitled to find for the reasons she gave, that Pohiva’s evidence was unreliable, she did not make any adverse finding about the evidence of Sione and Silia. Both were experienced senior officers at the Ministry of Lands. There was confusion initially about who had completed the L9 form and witnessed Soane’s signature. However, in the end it was accepted that Pohiva was mistaken in asserting in his statement of defence that he and Soane had signed the L9 form in front of Silia. She accepted that it was in fact completed by Sione also witnessed Soane’s signature. At a later point in her evidence she said that Pohiva was also involved in completing the form but how he might have been involved was not explored with her. What is clear is that Soane was present throughout and there is no evidence that he raised any concerns then or later.
[27] To the contrary there was evidence from Soane’s brother Ienitolo that on 23 December 2020, Soane had explained he was leasing 3 acres of his land to Pohiva because of his love for him, referring to financial assistance Pohiva had given him. Ienitolo also gave evidence that when the land was surveyed for the lease, an umu was made with food supplied by Pohiva, Soane and himself. All three were on the land and all were happy.
[28] To our mind, Mr Edwards’ strongest point is the apparent conflict between Soane signing an application for a 20-year lease in favour of Pohiva for quarrying purposes while on the same day writing to the Minister of Lands seeking approval to quarry his allotment so that he could carry out work on it himself. It does not appear that this request was ever progressed, and it is unfortunate that the Ministry has apparently lost the relevant files. Mr Vea, from the Ministry, explained that the Ministry had moved offices three times after the COVID lockdown. Mr Edwards also rightly points out that it would be unlikely that Soane would agree to accept a rental return of only $100 per annum over a 20-year period given the valuation he had obtained from Mr Mafi of $2.5 million only six months before. Whether there was to be some other agreement between Soane and Pohiva as might be expected for a quarrying operation is unclear. Pohiva denied that there was any additional arrangement or that this was intended.
[29] We are conscious of the Judge’s finding, based on Pohiva’s own admission, that he had lied to Folola in Facebook messages after Soane’s death. It was not until then that Folola had become aware of the grant of the lease. Pohiva accepted in cross-examination that he had lied when he told Folola that Soane had done everything and had asked him to come over and sign the application for the lease. We also accept, as the Judge found, that Pohiva had given varying explanations over time as to why Soane had granted him the lease. These included first that Soane had agreed to the lease out of love for Pohiva and later his explanation that the grant of the lease was a matter of negotiation between the two. However, despite these curious and unsatisfactory circumstances surrounding the completion of the L9 form, we are not persuaded that the Judge was wrong to conclude that the standard of proof had not been met. There were no more than circumstances giving rise to suspicion but no compelling proof that the signature on the L9 form was a forgery. Proof to that standard could have been obtained through evidence of a handwriting expert. While this possibility had been raised by trial counsel, in the end it was not pursued.
[30] Our review of the evidence raises the possibility that the grant of the lease may have arisen from some form of undue influence on Soane but there is no more direct or indirect evidence to enable that inference to be drawn than there is to support the forgery allegation. The mere existence of other at least equally available possibilities means that the standard of proof required was not met as the Judge found.
[31] Mr Edwards’ alternative argument based on the tort of conversion was not pleaded and there was no evidence or argument upon it in the Court below. In the circumstances, we are unable to entertain this argument. We observe, however, that the annual rent will be due for review next year and the lease provides that, in the absence of agreement, the rent is to be fixed by the Minister.

Result

[32] The appeal is dismissed.
[33] The stay of proceedings granted by the Supreme Court pending appeal is rescinded.
[34] The amount paid into Court for security for costs is to be paid to the first and second respondents.
[35] The respondents are entitled to costs against the appellant on the appeal. If not agreed, costs are to be settled by the Registrar of this Court.

_________________________________
Randerson J

_________________________________
Heath J

_________________________________
Dalton J

^[1] On 16 July 2024.
^[2] Citing Havili v Kaufusi [2022] TOLC 3.
^[3] Helu v Taufa [1995] Tonga LR 107 and Tukuafu v Tupoumalohi [2002] Tonga LR 268.
^[4] Kuea v Fatafehi [2011] TLC 1.
^[5] At paras 38 and 39.
^[6] Re H [1996] AC 536 at pp 586,587.
^[7] Uhi v The Kingdom of Tonga AC 8/2018, 17 April 2019.
^[8] At para 15.
^[9] At para 17.
^[10] At para 18.