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Present ; Bertram 0. J. and De Sampayo J.FAI/ALLOON v. OASSIM.
351—D. C. Puttalam, 2,468
Unnecessary extensionof scopeof trialdeprecated—Cross-examination—
Records of previous litigation—Evidence Ordinance, ss. 52, 146, 153,154, and 1 SB^-When Court of Appeal may revise findings of fact.
It is not permissible to tender inevidencerecords of previous
litigation in which a litigant or a witness may have been previouslyengaged, with aviewto showingthatheis of such a character asto
render probableorimprobableanyconduct imputed to him.A
witness may be cross-examined with reference to previous litigationso as to shake his credit by injuring his character. But his answersto those questions must be accepted, and they cannot be eitherimpeachedorconfirmed bytheattackingparty by tendering in
evdence therecordof the case inquestion. In any case it isnot
competent for anyparty toput inevidencethe entire body of
proceedings’ andpapers ofanotheractionindiscriminately. The
Court cannot do this, even thoughthe parties desireit.Nor is it
legitimate to tender in evidence the opinion expressed by the Judgewho tried thecase.Referencemaynodoubt be made inre*
examinationto adeposition ordocument forming part ofthe
record, or even to the opinion expressed by a Judge, for the purposeof enabling a witness to explain any answer given in cross-examina-tion. Butthe Court shouldnarrowly watch any attempt to
encumberits record bytheillegitimate incorporation of the
proceedings of previous litigation.
While a Court of Appeal willalwaysattach the greatestpossible
weight to any findingof fact ofa Judgeof first instance based upon
oral testimony given before thatJudge,it isnotabsolvedbythe
existence ofthesefindings from the duty of formingits ownview
of the facts, more particularly ina casewherethefacts areofsuch
complication that their right interpretation depends,not onlyonany
personal impression which a Judge may have formed by listeningto the witnesses,but also upon documentary evidence, and upon
the inferences to be drawn from the behaviour of these witnesses,both before and after the matters on which they give evidence.
rJ1HE facts are set out in the judgment.
Samarawickreme, F. H. B. Koch, and Cooray, for appellants.
A. St. V. Jayavmrdene,for respondents.
A. Drieberg, and Brito-Muttuna jagam,Cur. adv. vult.
August 22, 1918. Bertram C.J.—
This was a case, the principal parties to which are an uncle andnephew, who, together with a third member of the family, wereco-owners of sixteen lands in the Puttalam District, and who had
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entered into an agreement for the partition of these lands. Thepartition deed set out the various lands, and divided them intoportions of two-thirds and one-third, specifying in each case thesituation of the portion allotted to either party (north or south,east or west, as the case might be), and leaving the actual dividingline to be drawn by a licensed surveyor, to be appointed, in the firstinstance, by the first defendant, or, if he failed to appoint a sur-veyor within three months, by the plaintiff. The first defendantappointed a surveyor, and a partition was effected. This partitionhas been challenged by the plaintiff, on the ground that it is not inaccordance with the partition deed, and therefore -not binding uponhim. The points on which the partition is criticised are mainly two: —
That it was effected without notice to the plaintiff as requiredby the deed.
That, for the purposes of the partition, the extent of thevarious lands dealt with was determined by the actual titleas shown by the documents, and not, as the true constructionof the deed is said to require, by the land in actual occupation.
The principal questions for the Court, therefore, were, firstly,whether notice had been given of the partition; and secondly, whatwas the true construction of the deed on the points indicated. Onthese apparently simple questions it has been thought necessary toinvestigate, not only the family history and differences of the parties,but also the character and disposition of the first defendant, hierecord as a litigant and witness in matters wholly unconnected withthis action, and the competency, professional record, mid personalhonesty of the surveyor who carried out the partition. The magni-tude of the evidence taken is such that, whether for this or for otherreasons, the District Judge did not feel himself able to deliverjudgment until five months after the argument.
I should like, in the first place, to deprecate such unnecessaryextensions of the scope of trials, and, in particular, to suggest thatwhen it is thought necessary to cross-examine a litigant aboutprevious litigation in which he may have been a party or a witness,more strict regard should be had to the provisions of the EvidenceOrdinance. It is not permissible to tender in evidence records ofprevious litigation in which a litigant or a witness may have beenpreviously engaged, with a view to showing that he is of such acharacter as to render probable or improbable any conduct imputedto him. This evidence is excluded by section 52 of the EvidenceOrdinance. A witness may no doubt be cross-examined withreference to previous litigation under section 146, so as to shakehis credit by “ injuring his character.” But his' answers to thosequestions must be accepted, and they cannot be either impeachedor confirmed by the attacking party by tendering in evidence therecord of the ease in question. This cannot be done in order tocontradict him by reason of section 153. The evidence cannot be
tendered in order to corroborate the effect of any admission he mayhave made, because this is not one of the methods of impeachingthe credit of a witness which are authorized by section 155. Inany case it is not competent for any party to put in evidence theentire body oi proceedings and papers of another action indiscrimi-nately. The Court cannot do this, even though the parties desire it.(See section 154 of the Civil Procedure Code.) Nevertheless, thiscourse was adopted in the present trial. Nor is it legitimate totender in evidence the opinion expressed by the Judge who triedthe case. The opinion of the Judge, whether in a civil or in acriminal case, is not the same thing as a conviction in a criminalcase. Proof of previous convictions is specially provided for incases of cross-examination to credit by the first exception to section153. But the opinion of the Judge as to the conduct of a witnessin a previous trial is no more relevant for the matters under investi-gation in a subsequent trial than would be an opinion on the samematters expressed by an eminent witness, or, indeed, a commentin a newspaper. Beference may no doubt be made in re-examinationto a deposition or document forming part of the record, or evento the opinion expressed by a Judge, for the purpose of enabling awitness to explain any answer given in cross-examination. * But theCourt should narrowly watch any attempt to encumber its recordby the illegitimate incorporation of the proceedings or parts of theproceedings of previous litigation in which witnesses have taken part.To allow this to be done is to add a new and unnecessary terrorto the witness box.
The view of the case taken by the District Judge upon a mass ofevidence thus collected was that the first defendant, being a manof harsh, overbearing, and unscrupulous character, and consequentlylikely to ride roughshod over any person with whom he was noton cordial terms, although aware of. the provisions requiringnotice of the survey, deliberately resolved to set it at nought, andto conduct the survey without any notice at all to the plaintiff;that, further, for this purpose, he suborned the evidence of thesurveyor, and that this surveyor, whether in conspiracy with thefirst defendant or out of pure officiousness, deliberately concocted inadvance a piece of documentary evidence calculated to cast crediton the evidence which it was supposed that the plaintiff would givein support of his case; that this surveyor, in pursuance of the samedesign, carried out partitions which were throughout inequitable andunfair; that, further, these divisions were not only' inequitable andunfair, but also inaccurate. The learned Judge, therefore, in spiteof the fact that these lands had already been surveyed by twosurveyors, and in part also by a third, has directed this work to bedone over again by a fourth surveyor, and proposes that the Courtshall itself demarcate the divisions in accordance with this surveyor’sreport.
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The conclusions thus adopted, by the learned District Judge arerepresented to us as being findings of fact, or as involving findingsof foot, which we ought not to disturb. With regard to this conten-tion, it is sufficient to say that, while a Court of Appeal will alwaysattach the greatest possible weight to any finding of foot of a Judgeof first instance based upon oral testimony given before that Judge,it is not absolved by the existence of these findings from the dutyof forming its own view of the facts, more particularly in a casewhere the facts are of such complication that their right interpreta-tion depends, not only on any personal impression which a Judgemay have formed by listening to the witnesses, but also upondocumentary evidence and upon the inferences to be drawn fromthe behaviour of these witnesses, both before and after the matterson which they gave evidence. The authoritative character offindings of fact is often insisted upon, and attention to this pointhas been recently drawn by a judgment of the Privy Council in thecase of Fradd v. Brown & Co.1 It is well, therefore, that the qualifi-cations of this principle as laid down by other authorities shouldnot be lost sight of. Thus, in The Olannibanta 2 the Court said:“ Now, we feel the great weight that is due to the decision of a Judgeof first instance whenever, in a conflict of testimony, the demeanourand manner of the witnesses who have been seen and heard by himare material elements in the consideration of the truthfulness oftheir statements. But the parties to the cause are neverthelessentitled, as well on questions of fact as on questions of law, todemand the decision of the Court of Appeal, and that Court cannotexcuse itself from the task of weighing conflicting evidence anddrawing its own inferences and conclusions, though it should alwaysbear in mind that it has neither seen nor heard the witnesses, andshould make due allowance in this respect.”
And in the case of Coghlan v. Cumberland,3 Lindley M.R., indelivering the judgment of the Court, said: “ Even where the appealturns on a question of fact, the Court of Appeal has to bear in mindthat its duty is to re-hear the case, and the Court must reconsiderthe materials before the Judge with such other materials as it mayhave decided to admit. The Court must then make up its ownmind, not disregarding the judgment appealed from, but carefullyweighing and considering it, and not srhinking from over-ruling it,if on full consideration the Court comes to the conclusion that thejudgment is wrong. When, as often happens, much turns on therelative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the greatadvantage he has had in seeing and hearing them.' It is often verydifficult to estimate correctly the relative credibility of witnesses
1 (ISIS) 20 N. L. B. 282.2 (1876) 1 P. D. 283
3 (1898) 1 Ch. 704.
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from written depositions; and when the question arises whichwitness is to be believed rather than another, and that questionturns on manner and demeanour, the Court of Appeal always is,and must be, guided by the impression made on the Judge who sawthe witnesses. But there may obviously be other circumstances,quite apart from manner and demeanour, which may show whethera statement is credible or not; and these circumstances maywarrant the Court in differing from the Judge, even on a questionof fact turning on the credibility of witnesses whom the Court hasnot seen/' See also the cases of Bigsby v. Dickinson1 and Jonesw. Hough.2
It was suggested that in this respect the Supreme Court ought tobe guided by different principles from the English Court of Appeal,on the ground that appeals to the Supreme Court are not expresslydeclared to be in the nature of a re-hearing; but no satisfactoryauthority was cited for any such supposed contention. On the contrary,sections 89 and 40 of the Courts Ordinance give to this Court asextensive powers and capacities as those enjoyed by any Court inEngland. I propose, therefore, to examine the facts, and to explainwhat, in my opinion, is the standpoint from which they should beregarded.
Even +he conclusions of the learned District Judge as to themanner and demeanour of witnesses should in this case be receivedwith a certain amount of caution. Thus, in very strong terms, heexpresses a severe view of the character of the first defendant.That view is based partly no doubt on manner and demeanour, butpartly also on matters which it is difficult co understand the necessityfor his examining, and which he could hardly be considered as havingan adequate opportunity of examining in this case. On this it maybe well to note that the first defendant’s nephew, the plaintiff inthis case, who on the view taken by the learned Judge was over-reached and over-ridden by his uncle both in this and other matters,speaks of his uncle in these terms:“ The first defendant belongs
to a highly respectable family in Puttalam; he is much respected;even I respect him.” With regard to the learned Judge’s character-ization of the surveyor, Mr. Kirthesinghe, it may be convenient thatat this point also I should deprecate the vehemence with which thelearned Judge has expressed his opinion, and the unnecessaryaspersions which he has thought fit to cast upon the character ofthis gentleman. To say that ” he practically admits to a lie,”because he has forgotten the precise manner in which a documenthad been forwarded some years before the date when he was speaking,is wholly gratuitous. The learned Judge says that ” he wasuntruthful, vacillating, and inaccurate,” that almost all hisanswers to questions, except when he could not help giving a
1 (1876) 4 Ch. D. 24.
2 (1879) Ex. D. 115.
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direct one, were *' I don’t know,” ” I can’t remember,” “ It may be,”or " I think. ” I have already commented upon the slender basisfor the finding of untruthfulness. If the answers of the witnesswere such as the learned Judge imputes to him, this fact does notappear from the very full note which the learned Judge has takenof his evidence. As to his inaccuracy, although there were in hisplans certain minor inaccuracies on such points as computationsand the entering of the numbers of title plans, there is not a singlesubstantial point, so far as actual surveying is considered, on whichMr. Kirthesinghe’s plans have been found to be inaccurate. He isno doubt open to criticism for want of businesslike methods withregard to the keeping of accounts and the preservation of letters;as a correspondent he was dilatory and inexact; his memory isunreliable; he was incautious in accepting plausible suggestionsmade to him on cross-examination, without realizing where theywould lead him. But the impression which the reading of hisevidence has made upon me is that of a conscientious witness, whoon all matters of fact was careful not to make an uuquaMedassertion unless he could speak with certainty, and was readyfrankly to admit any mistakes or misconceptions for which hemight have been responsible. The view that was pressed upon us,and which was apparently adopted by the learned Judge, was thatMr. Kirthesinghe was a most unscrupulous person, because, being aprofessional witness, he had deliberately given untrue evidence insupport of the case of his employer. It appears to have beenoverlooked that there is another view of the case; and that is, that,Mr. Kirthesinghe being a professional witness, his evidence on anyquestion of fact to which he is in a position to speak ought toreceive special weight, and that what he says on any point ofcontroversy is more likely to be true than the evidence of thewitnesses on either side who have a direct interest in the result ofthe case. It is a singular thing that, if Mr. Kirthesinghe were reallythe unscrupulous person he is alleged to be, the difference betweenhis surveys and those of the plaintiff’s surveyor are of so inconsider-able a character as to be hardly worth taking into account, andin some cases are to the advantage of the plaintiff. I may also .here remark, in anticipation of the subsequent conclusions of myjudgment, that, in my opinion, so far from being inaccurate andunfair, Mr. Kirthesinghe’s surveys may properly be taken as thebasis cf a demarcation to be ordered by the Court. I
I will now address myself to what I have indicated ’as being the
real questions in the case [His Lordship proceeded to
discuss the evidence.]
De Sampayo J. concurred.
FALALLOON v. CASSIM