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Wang v Fund Management Ltd [2008] TongaLawRp 40; [2008] Tonga LR 204 (25 July 2008)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

AC 09/2008

Wang

v

Fund Management Ltd anor

Burchett, Salmon, and Moore JJ
22 July 2008; 25 July 2008

Civil law – appeal – no basis for interfering with findings of lower court – dismissed

For the facts of this judgment, see the Land Court decision at Wang v Fund Management Ltd anor [2008] Tonga LR 90. The Land Court did not find the plaintiff a convincing or credible witness and it rejected the evidence of the only corroborative witness called on his behalf. No handwriting expert was called to support the plaintiff's contention of fraud. The plaintiff failed in his claim and the defendants were awarded costs to be agreed or taxed. The plaintiff appealed against the findings.

Held:

1. The court compared the signatures and agreed with the findings of the lower court. No basis was made out by the appellant for interfering with the finding of the lower court about whether the appellant signed the three documents.

2. The appellant alleged that the affixing of the stamp and the signatures were fraudulent and done some time after the affidavits were sworn. The court considered that there was no basis for that conclusion having regard to the state of the documents.

3. The appeal was dismissed with costs.

Counsel for the appellant : Mr Edwards
Counsel for the respondent : Mr Niu

Judgment

[1] This is an appeal against a judgment of Ford CJ of 29 April 2008. His Honour dismissed a claim by the appellant arising from the appellant's dealings with the respondents over a parcel of land in the middle of the commercial centre of Nuku'alofa ("the disputed land"). The appellant had been the lessee (for 50 years) of the disputed land. On 24 February 1998, Acting Chief Justice Lewis made orders directed to the Minister of Lands to effect a subdivision of the disputed land by dividing the leasehold into two halves and having two new sub-leases issued in the names of Fund Management Ltd ("Fund Management") and Tourists Services Ha'apai Ltd ("Tourists Services"). The order further directed the Minister of Lands to register the new sub-leases and the mortgages over each, in favour of the ANZ Bank. On 13 February 2003, the Land Court gave judgment against the appellant in the sum of $225,000 and interest in later proceedings brought by Fund Management and Tourists Services.

[2] In the proceedings before Ford CJ, the appellant alleged that he was unaware of the proceedings in which Lewis ACJ made the orders, either on or before 24 February 1998 and that a document which underpinned the orders (an agreement to re- lease dated 9 February 1998) contained a forgery of his signature. In relation to the proceedings in which judgment was given on 13 February 2003, the appellant alleged, in the proceedings before Ford CJ, that not only was his signature on the re-lease agreement of 9 February 1998 forged, so too was his signature on both an agreement of 23 February 1998 ratifying the re-lease agreement and a guarantee executed the same day.

[3] The central issue before Ford CJ was whether the appellant was correct in alleging his signature had been forged on these documents. There was a subsidiary issue concerning the circumstances in which Tourist Services became a party to the agreement of 9 February 1998 having regard to the fact that it was not incorporated when the agreement was executed. A further subsidiary issue was raised about that company's execution of the agreement on 23 February 1998 ratifying or re-executing the 9 February 1998 agreement.

[4] A finding was made by Ford CJ that the signatures on the three documents, were signatures of the appellant. First, he made a comparison between the signatures on the three documents and signatures on other documents known to be signed by the appellant. Second, he accepted evidence from a number of witnesses who either saw the appellant sign the documents or said the appellant was present when the documents were executed. This last point was important because Ford CJ rejected evidence of the appellant that he was in Singapore at the time the documents were executed. This finding was based not only on the evidence of the witnesses who said they saw the appellant when the three documents were executed but other documentary evidence which cast substantial doubt on the appellant's claim to have been in Singapore.

[5] We have made a comparison ourselves of the signatures. It readily supports the finding made by Ford C]. As to the witnesses, his Honour was well entitled to accept their evidence and reject the evidence of the appellant. Indeed Ford C] did not find the appellant a convincing or credible witness. His Honour had the benefit of observing the witnesses, including the appellant, give their evidence. He drew upon observations he made in reaching the conclusion he did about the appellant's credibility and the credibility of other witnesses. We are not in the same position and significant weight has to be given to the fact that the trial judge had the opportunity of observing the witnesses and reached conclusions about whether they should be believed. No basis at all is made out by the appellant for interfering with the finding of Ford CJ about whether the appellant signed the three documents.

[6] The subsidiary issues concerning the signing of the documents can be dealt with briefly. Ford CJ accepted the submissions on this issue made by the respondents at trial. His Honour was correct in doing so. Accepting, as was the fact, that Tourist Services was not incorporated on 9 February 1998 (it was incorporated on 20 February 1998), another version of the agreement was executed by the company (and others) on 23 February 1998. To the extent that the appellant challenges the fixing of a stamp saying "CONFIDENTIAL" as the company's seal, the use of this somewhat unusual company seal was agreed to by resolution the company on 23 February 1998. In the circumstances, its affixing together with the directors' signatures can be taken to be a manifestation of the company's intention to enter the agreement. In the appeal, counsel for the appellant also sought to impugn the affixing of the "CONFIDENTIAL" company seal and at least one of the signatures by alleging that they were on top of a stamp used to verify copies of the documents annexed to affidavits sworn in 2002. Thus, it was alleged, the affixing of the stamp and the signatures were fraudulent and done some time after the affidavits were sworn. There is no basis, in our opinion, for this conclusion having regard to the state of the documents.

[7] The appeal should be dismissed with costs.