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Tupa v Bole Junior [2019] SBHC 74; HCSI-CC 267 of 2017 (3 October 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 267 of 2017

HARRY TUPA
First Claimant

TROPICAL RESOURCE DEVELOPMENT COMPANY LIMITED
Second Claimant

V

JOHN BOLE JUNIOR AND GEORGE POU
First Defendant

HYBRID RESOURCE LIMITED
Second Defendant

Date of Hearing: May/June 2019 (Trial Book located
Date of Judgment: 3 October 2019

Mr. M Tagini for the First and Second Claimants
Mr. W Rano for the First and Second Defendants

JUDGMENT

Keniapisia; PJ

1. The issue in this claim is very simple. And only made complicated by counsel Rano, in his technical points raised in closing submissions. Counsel Rano made the technical submission that fraud and forgery are not the same thing. And whilst the claim alleged fraud, it actually particularised forgery at paragraph 9. So the claim is not made out, on the pleadings counsel submitted. The claim seek the main relief that the Form 4 Agreement signed with the 2^nd defendant be declared null and void and unenforceable. The Form 4 Agreement was signed following a successful Timber Rights acquisition by the 2^nd defendant. The other two reliefs sought are permanent restraining orders and cost.
2. Counsel Rano cited two case authorities in support of his submission. However, the two cases have distinct set of facts unrelated to Form 4 Agreement - forgery and or fraud. The first case C & I Distributors Limited v Ao^[1], concerned forgery in a sales of refrigerator transaction. A criminal case was active against the defendant. And so Court stayed the civil proceedings pending outcome of the criminal charges. Similarly the second case^[2] has a totally different set of complicated facts unrelated to Form 4 Agreement - forgery and or fraud. Case was on fraud related to two court orders appointing receiverships to a company. Counsel submitted that forgery is not properly pleaded and wrongly pleaded against Commissioner of Forest at paragraph 9, of claim. Minus that mistake, where Commissioner of Forest (Commissioner) was pleaded, I read the whole of paragraph 9 and is simply pleading that Tupa did not sign the Form 4 Agreement. Was an apparent mistake to plead the Commissioner in relation to the Form 4 Agreement, because the agreement does not involve the Commissioner. The agreement is normally between determined trustees (John Bole Jr. and Harry Tupa) and the TR applicant (Hybrid Resource Ltd). Minus the mistake, the facts pleaded in paragraph 9 are not complicated (Tupa did not sign the Form 4 Agreement). And the issue is simple.
3. The issue is - “Whether Harry Tupa signed the Form 4 Agreement entered into with the 2^nd defendant, on 30^th November 2013^[3], following the completion of 2^nd defendant’s Timber Rights process? If Tupa signed the Form 4 Agreement with Hybrid, then the felling license and felling of trees on Bolilau land is valid. On the other hand, if Tupa did not sign the Form 4 Agreement, together with the other determined trustee (John Bole Jr.), then there is no valid agreement and no valid felling license to log on Bolilau land. Both determined trustees from the Timber Rights (TR) process must sign the Form 4 Agreement. So the important question of fact and law, to determine the lawfulness or otherwise of the Form 4 Agreement is: “Did Harry Tupa signed, the Form 4 Agreement”? This is where I need to consider the evidence very carefully.
4. All along, Harry Tupa’s involvement in Hybrid’s TR application was characterised by a very strong reluctance. Initially, the consent to kick start the TR process, through signing of a “request letter” was forced on Harry Tupa, at school. I say forced because, if Harry Tupa was a willing participant, he could have signed at other places, and not pulled out from class to sign the Request letter for logging^[4]. That piece of evidence on calling Tupa out from class was not dispelled.
5. Then Harry Tupa objected and did not attend the TR hearing held at Polomuhu village, Ngella, Central Province, on 16^th August 2012^[5]. There was contradictory evidence because Mr John Bole Jr. say that there was no objection (sworn statement by John Bole Jr filed 12/7/2017 – page 33 – 37, Court Book). I looked at the Minutes (page 42, Court Book, under observation) and noted that there were objections. Minute recorded that objections were made in a proper manner with the good guidance of the Chairman, and there were little arguments raised (page 42 Court Book). But the Central Province Executive did not determine the objections – a matter the Executive ought to have determine under Section 8 (3) (a) of the FRTUA.
6. At the time of TR hearing, Mr. Tupa was a student. And could not attend, but send his objections through his spokes persons. Mr. Tupa also say that there were disagreements between his family and the 1^st defendants. I found above, the Minute recorded there were objections, but not determined by the Executive under Section 8 (3) (a) of FRTUA. The evidence on disagreements was not disputed. For the evidence of the defendants confirm the dispute, saying the dispute was settled at Rano’s office with the payment of $4,000.00. And then Tupa signed the Form 4 Agreement.
7. Evidence for the defendants say Tupa signed the Form 4 Agreement, after $4,000 was paid at Rano’s office. Claimant’s evidence denied this. So I had to compare Tupa’s signature from four possible sources disclosed in evidence: (i). Form 4 Agreement (page 28 Court Book), (ii). Request letter (page 26 Court Book), (iii). Sworn Statement (page 19) and (iv). Four times Tupa made his signature in court, in response to Court’s questions/request.
8. Though I am not an expert in signatures, I found very easy to make a comparison of the four sources of signatures. And I found very easy to reach the conclusion that the signature on the Form 4 Agreement, on the balance of probability, was not Tupa’s signature. Mr. Tupa’s signature on the Request letter, Sworn Statement and the four signatures Tupa made in Court all had similarities. And they looked very different from the signature on the Form 4 Agreement. The common similar feature on Tupa’s signature are what I called the three sticks ( ) that always stand out in Tupa’s signature, in addition to the other features in the signature. In the Form 4 Agreement, the three sticks do not stand out. This is consistent with Tupa’s evidence that he did not sign the Form 4 Agreement.
9. Now if Tupa did not sign the Form 4 Agreement, then what is the effect of the Agreement in contract law? And what would that be called in contract law? Would it be called fraud or forgery? I did a bit of research on internet on the legal definition of the words “Fraud and Forgery”. I started with forgery because forgery is pleaded in the claim. Forgery is the creation of a false written document or alteration of a genuine one, with the intent to defraud^[6]. Then the meaning of defraud is: “to make a misrepresentation of an existing material fact, knowing it to be false...intending on someone to rely on the misrepresentation^[7]...” To defraud means an intention to deceive another person or to use a trick, falsehood, cheat to obtain...rights or anything of value belonging to another^[8].
10. So I am comfortable with the law that forgery is the creation of a false written document, with intention to defraud, or to cheat or to trick someone. Defraud or Fraud is to make a misrepresentation of an existing material fact, knowing it to be false, so that someone could rely on the misrepresentation to their detriment or defraud means to deceive or cheat someone to obtain that other person’s rights or anything of value belonging to that other person. So forgery or fraud is a misrepresentation of an existing material fact to cheat someone to obtain something of value belonging to that someone.
11. Applied to this case, Tupa’s signature is something of value to him. Someone had misrepresented Tupa’s signature on the Form 4 Agreement, by forgery, of that document (Form 4 Agreement) which was falsely presented as if Tupa was a willing signatory (Party or Trustee) to the contract (F4 Agreement). That contract was created with falsehood. The falsehood (misrepresentation) is the cheating or forgery of Tupa’s signature. I found on the evidence as a fact that the Form 4 Agreement was entered into by misrepresentation, owing to the forgery of Tupa’s signature. I found above that the signature does not belong to Tupa. As to who made the misrepresentation, defendants deny responsibility (Casper Kuria and John Bole Jr.). I am not able to make a conclusion on who forged Tupa’s signature. But I am satisfied that the signature on the Form 4 Agreement was not Tupa’s (Repeat paragraphs 7 and 8).
12. So what is the effect of misrepresentation on the Form 4 agreement, in contract law? A contract concluded by fraud or misrepresentation is voidable. It is for the defrauded party to choose, whether or not to rescind the contract. Here the defrauded party, Mr Tupa is choosing to make the contract void (See relief number 2 of the claim). Therefore the contract is void and unenforceable, at Tupa’s choosing.
13. There is one more ground to hold the Form 4 Agreement null and void and unenforceable. I found on the evidence that the person who signed on the Form 4 Agreement, by the name Mr. Casper Kuria was not a determined trustee^[9]. By law (the TR Acquisition process under the FRTUA) - only the determined trustees can sign the Form 4 Agreement.
14. There is yet one further ground to hold the Form 4 Agreement null and void and unenforceable. I found evidence on the face of the Form 4 Agreement that it was executed on Ngella at Polomuhu village. But in oral evidence, it was executed at Rano’s office, at Ranadi, Honiara. Witness to the Form 4 Agreement is PS - Selwyn Vasuni. The witness was not called to confirm, where the Form 4 Agreement was executed. It leaves my mind doubting, the certainty of the agreement, where claimant is saying he did not sign at Rano’s office.
15. Furthermore, one important clause of the Form 4 Agreement was not completed at time of signing – Clause 2 on commencement. This shows something that was rushed. At the outset, I said that Tupa’s involvement in the TR process was one of great reluctance coupled with disagreements.
16. In conclusion, I looked at the totality of the evidence and noted that to start with Tupa was pulled out from class to sign the Request letter. Then Tupa did not attend the TR hearing but send his objections. Then Tupa and his family had disagreement with 1^st defendants. It is not a surprise that Tupa did not sign the Form 4 Agreement. And I found his signature was forged as an attempt to defraud. Through the comparison of the signatures, I am satisfied on the balance of probability, that Tupa did not sign the Form 4 Agreement. Though the defendants say Tupa signed after payment of $4,000.00, at Rano’s office, which Tupa strenuously denied, the crucial witness was not called to verify. That crucial witness is PS – Selwyn Vasuni.
17. Accordingly, the reliefs claimant sought are granted as follows:
    • 17.1 The Form 4 Agreement under scrutiny is declared null and void and unenforceable. License that sits on the Form 4 Agreement issued to 2^nd defendant is accordingly null and void and unenforceable.
    • 17.3 Permanent Restraining orders is granted against 2^nd defendant over Bolilau land.
    • 17.4 Costs against the defendants.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

^[1] [2005] SBHC 138; HCSI-CC 081 of 2002 (16^th November 2005)
^[2] Reef Pacific Trading Limited v Price Water House [1999] SBHC 72; HCSI-CC 164 of 1994 (26^th July 1999).
^[3] Page 27 – 28 of Court Book for copy of Form 4 Agreement.
^[4] Page 26 Court Book for copy of Request Letter.
^[5] Pages 41 – 42 of Court Book for copy of Minutes.
^[6] https://legal-dictionary.the freedictionary.com/forgery
^[7] https://legal-dictionary.the freedictionary.com/defraud
^[8] https://legal-dictionary.the freedictionary.com/defraud
^[9] See the 2 determined trustees at page 40 and 61, Court Book.