( 497 )
Present: Ennis A.C.J. and De Sampayo and Dalton JJ*.
DE ZOYSA v. MENDIS et cl325—D. C. GaUe, 20,454.
Appeal—Question of fact—Failure of Judge to discuss evidence—Interference by Court of Appeal.
Where, in a case involving the decision of a question of fact, theJudge fails to di6cuss the evidence in his judgment, a Court ofAppeal would be justified in interfering with the decision.
PPEAL from a judgment of the District Judge of GaUe on aquestion of fact. In view of the ruling of the Privy Council
in Fradd v. Brown & Co., Ltd.,1 the case was referred to a Bench ofthree Judges.
Navaratnam for second defendant, appellant.
If. V. Perera, for plaintiff, respondent.x
June 5, 1925. Exsrs A.C.J.—
The plaintiff in this case prayed for a divorce from his wife, thefirst defendant, and for damages against the second defendant byreason of the adultery of the first and second defendants. Thelearned Judge held that the adultery had been proved, granted adivorce, and ordered the second defendant to pay B*. 300 damagesto the plaintiff. The second defendant appeals from this decision.
The appeal is on fact only, and in view of the ruling of the PrivyCouncil in Fradd v. Brown & Co., Ltd. (supra), as to the reality of theoccasions upbn which a Court of Appeal will overrule a Court of firstinstance on a question of fact, my brother Dalton and I referredthis matter to a Court of three Judges. Not only was there a diffi-culty in the evidence, but the first defendant had not appealed. Ihave come to the conclusion that this is a case in which the AppealCourt might properly overrule a decision of the Court below. Inthe case reported in IS N. L. R. 302, it was pointed outthat there were circumstances, apart from the manner and thedemeanour of the witnesses, which would warrant a Court indiffering from a Judge on a question of fact. In this case the maincircumstance appears to me to be that the learned Judge in hisjudgment does not discuss the evidence. He has mentioned hisfindings as a conclusion without touching on the details. Moreover,the foundation of his judgment against the second defendant is
1 (1918) 20 N. L. R. 2S.
( 498 )
1925. utterly wrong. Me lias said that it is difficult to understand why theUntos A.C.J. second defendant should have been implicated, unless the case against
him were true. On a basis such as this, no defence at all would be
Possible. Moreover, as against the second defendant, the learnedJudge has taken into account certain letters written by the firstdefendant. These letters in no way mention the second defendantor implicate him, even if they be taken as the Judge has done as anadmission by the first defendant that she lias committed adultery.I may say that I do not so regard it myself. But clearly as againstthe second defendant the reliance of the Judge on these letters waswrong.
On the* facts of the case it appears that the plaintiff is the cashierof a film of paper merchants in Colombo, and his family live atAmbalangoda. It appears that his wife lives in a one-roomedhouse, which has a small kitchen at the back. The plaintiff’smother lives in the adjoining room, which is smaller, and also has asmall kitchen at the back. The story for the plaintiff was thaton March Id, 1923, the second defendant came into his wife’s room,while it was still dark, in the morning, and that one of the inmatesof the room went out and informed the plaintiff’s mother in thenext room, whereupon the plaintiff’s mother came out and beganto weave coir yam outside the door of the first defendant’s room.-The story goes on that she and her daughter remained there weavingyarn until about 1.30 p.m., when the second defendant dashed out,went over the road to his own house through a crowd of some thirtypeople who had collected. Meanwhile the plaintiff’s mother appearsto have caused a telegram to be dispatched to the plaintiff inColombo to the effect: “ Man inside, come immediately.” Theplaintiff took train to Ambalangoda, and was met at the station,mid he proceeded at once to the headman of the village before goinghome and made a complaint. The defendants each deny the story.The witnesses called by the plaintiff who could speak with regardto the events of the. day were his mother and his sister and the wifeof the wife’s uncle, one Kovis, a mason. Kovis is the only one ofthe thirty persons who were alleged to have collected outside that hasbeen called. The story of the relatives of the plaintiff is that on thenight in question, the first defendant was sleeping in her room withher two children, the eldest of whom is a boy of seven, and withher was also the plaintiff’s sister, a girl of twelve. The mother saysthat in the early morning this girl of twelve came to her and toldher that Etin was in the room, and that she did not want to sleepthere. It was this communication which led the mother, togetherwith this girl of twelve, to station themselves in front of the doorweaving coir. This story, on the face of it, does not seem to benatural. It would seem improbable that a man, with the intentalleged against Etin, would have gone into the room where, inaddition to the woman, there was a boy of seven and a girl of twelve.
.( 409 )
Moreover, the conduct if the mother-iii law upon being apprisedof the presence of .this fiian in the room does not seem to be natural.She makes no outcry, but calmly sits down and weaves yam outsidethe door. It appears that some time later she called for the wife ofthe plaintiff's unde, and caused the telegram to be sent. The tele-tram does not mention the name of the second defendant. Finally,the story that the second defendant ran utvay from the house about1.30 p.m., after being kept a prisoner for eight hours, and dashingthrough a croud of thirty people, does not seem natural. Had itbeen the fact, one would have imagined that it would have beenpossible to have called more testimony—and independent testimony—as his presence on that occasion- The story then of the eventsof March 13, 1923, has an artificial ring about it, and doesnor. seem to .accord with wl|at one might expect as the naturalattitude of persons in such circumstances.
In the next stage of the^stoiy is .the question of certain letterswritten by the first defendant. These letters -were written to theplaintiff and to the managing partner and the senior partner of thefirm in which the plaintiff was engaged. The letter's appear to meto be the letters of a woman who is earnestly seeking a reconciliationwith her husband. The learned Judge has regarded them as con-taining admission of guilt. There is in fact no direct admissionof1 guilt in any one of these letters. There is the statement that thefault is the writer's, and that the mishap occurred through herignorance. She prays the assistance of her husband's employers,.to effect a reconciliation, and in the letter to her husband, IP 3,while admitting her fault, she prays for a pardon, asking himnot to believe the sayings of others, and she also suggests that shewould be glad to leave the place and go somewhere else, even to asmall house away from this quarter. The letters seem to be lettersof a woman in genuine distress at the estrangement between herhusband and herself. As I have said, however, as against thesecond defendant they are inadmissible, as .they do not in any waymention him, and do nothin fact contain any admission of guilt.
Finally there is the story put in by the second defendant thatthe plaintiff had condoned his wife's offence, if any. This story isfrankly admitted, although the circumstances related differ slightlyin the mouths of the different witnesses. It appears that on June 25the plaintiff went down to Ambalangoda, and went to his house,and arrived there about dinner time. He says that his wife and hismother-in-law came to the house while he was .there, and. soughtonce more to effect a reconciliation. The second defendant in someway became aware of this and informed a headman or more thanone headman, in the result three headmen arrived at the house,one of whom had to travel a distance of three miles. On the arrivalof the headman, the plaintiff was found seated on a chair, and thewoman standing by a table. The learned Judge has accepted the
KxnisA. C. J
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1926- plaintiff's explanation of. this circumstance. He considers • that • itsiayiy ^ r« „T was not in. the circumstances a condonation of . the offence, ' In' ~— my view , the circumstance shows that .the wqman has been doingifcijjfo' * her -very, utmost to remove the estrangement between herself andher, husband, and has a bearing on .the truth of her story that thecase .against her has been concocted by her husband's relatives.One pf :the employers of the husband gave evidence, and he studthat on receipt of the letter -addressed to him by .the wife he calledfor .the plaintiff, and suggested that he should drop the matter,when the plaintiff said that “ if he; did so he may be killed as therewere several -enemies. ” . This, seems. to indicate that the plaintiffwas afraid of somebody who is interested in the prosecution of thecase to. a. finish, which is the suggestion also of the first defendant.Now,, although the learned Judge ihadthe advantage of seeing andhearing the witnesses, he has not gone into any of these details inweighing the value of their testimony. It seems to rne that, thestories told are such that.we are bound on appeal to.give weighttp them. The artificial and.. urmatural character of the -storiesrenders doubtful the evidence proceeding from .the relatives of. theplaintiff. The paucity of evidence also from aniong the ..personswho were alleged to have been standing on the road all the morningis a feature which has also to be considered. These matters takentogether tend to establish the truth . of the story told by the firstdefendant and also by the second defendant. In my opinion, thelearned Judge should not have held in favour of the plaintiff onthe first issue on this evidence. There is one other fact, which bearson the probability of the story, and .which is in favour of . the storyof the first defendant, and is .against.the story of the witnesses for theplaintiff, and that is that the woman at this time was in an advancedstate;of pregnancy and gave birth to a child in July.
I would accordingly set aside the decree as against1 the seconddefendant, and. dismiss the plaintiff’s action against him with costshere and below.
With regard to the first defendant, it is to be observed that thedecree nisi does not appear to have been made absolute. It wouldbe right for the Court below to give the first? defendant an opportu-nity of showing cause against the decree being made absolute, shouldshe ask for it.
De Sampayo J.—I agree.
Dalton J-—I agree.
DE ZOYSA v. MENDIS et al