BASNAYAKE, C.J.—Gunawardene v. Edirisinghe
1960Present:Basnavake, C.J.. and Sansoni, J.
GUNAWARDENE, Appellant, and EDIRISINGHE and another,
S. C. 561/58—D. C. Galle, 1649[S
Appeal—Question of fact—Power of appellate court to reverse trial fudge's conclusion.
An appellate court may reverse the trial judge’s conclusion on a pure questionof fact if the reasons given by the trial judge are not satisfactory, or if itunmistakably so appears from tho evidence.
.^.PPEALi from a judgment of the District Court, Galle.
N.E. Weerasooria, Q.G., with W. D. Gunasekera, for plaintiff-appellant.
B. Wikramanayake, Q.C., with M. T. M. Sivardeen, for 2nddefendant-respondent.
June 16, 1960. Basnayakjc, C.J.—
This is an action to recover a debt due on a promissory note from the1st and 2nd defendants who are brother and sister. The 1st defendantdid not seek to resist the claim. He said he received Rs. 5,000 from theplaintiff at his house in Baddegama. He supported the evidence of hiselder sister as to the circumstances in which she came to sign the promis-sory note as a ‘witness. The 2nd defendant sought leave to defend theaction and of consent leave was granted. The 1st and 2nd defendantsalong with the two witnesses to the promissory note, one of whom istheir elder sister, went to the house of the plaintiff and requested him tolend them Rs. 5,000. The plaintiff loaned that sum to the 1st and 2nddefendants, and the 2nd defendant paid back Rs. 500 as part payment onthe note. In support of his claim the plaintiff gave evidence and calledtwo witnesses. One of them,-the elder sister of the defendants', a person
1 (1918) 21 N. L. R. 86.
BASNAYAKE, C.J.—Gfunawardene v. Edirisinghe
seventy years of age and who signed the promissory note as a’witness,says: “ The plaintiff handed over the money to the 1st defendant and ■the 1st defendant hand ad over that money to the 2nd defendant. The1st defendant counted the money after he got it She explains howshe came to be a witness to the promissory note at the request of thedefendants, who came to her house to see their mother who was ill, andinvited her to go with them to Baddegama. The other witness a proctor’solerk describes how the defendants came in a car with their elder sister1 to his house and took him to the plaintifF’s house.- He says that R?. 5,000was paid in his presence and that he signed as a witness to the note.
The 1st defendant who was called by the defence supported the plain-tiff’s case. The 2nd defendant in her evidence denied the transaction,and alleged that a blank j)romissory note she had signed^had been filledin by the 1st defendant. She, at first, was not sure of her signature,and when asked whether she had signed the note said
“ I have signed it at the bottom of it. I cannot remember whetherI signed the promissory note ■ Aon the stamp. I signed at the bottomleft-hand comer and also at the bottom right-hand corner but I cannotremember whether I signed it on the stamp. (Shown the signatureon the stamp.) I cannot say definitely that the writing on the stampis that of mine or that it is my signature. Nor can I deny that it 'isnot my signature. I cannot definitely say that it is my signature.
I have nothing more to say that it is my signature.* (Witness is refer-red to the date on the stamp.) It bears the date ‘ 11.8.55 I cannotsay whether these figures have been written by me. The date on thetop right-band corner is not in my handwriting : but it is in my brother’shandwriting. Except for the signature on the note, the body of thenote has been filled up by my brother. The writing on the body ofthe note is similar to the writing of my brother the 1st defendant.
I have no experience or knowledge about the writing of promissorynote. I know that to sign a .blank promissory note is dangerous.”
An examination of the evidence of the 2nd defendant does not satisfyus that she is a witness who could be relied on, and her evidence cannot *be preferred to the consistent evidence given by the plaintiff, her eldersister, and her brother the 1st defendant. We are unable to agree withthe learned trial Judge that, in the circumstances of this’case, and havingregard to the nature of the evidence given by the 2nd defendant, theplaintiff’s evidence should be rejected. In regard to the plaintiff’sevidence the only observation that the learned trial Judge makes is thatthe “ plaintiff did not give his evidence in a convincing manner ”. Theplaintiff is a total stranger to the defendants. No reason is urged whyhe should conspire with the 2nd defendant’s brother and sister and'theother witness to the promissory note to make a false claim.^ – *+.:■
Learned counsel for the respondent submitted that this appeal wason a pure question of fact and that this Court should not reverse thetrial Judge’s conclusion. In support of his submission he referred
BASNAYAKE, C.J.—Gunawardene v. Edirisinghc
us to the case of Powell v. Sireatham Manor Nursing Home1 and tothe observations made therein that the appellate Court “ will notdepart from the rule it has laid down that it will not over-rule thedecision of the Court below on a question of fact in which the Judgehas had the advantage of seeing the witnesses and observing theirdemeanour, unless they find some governing fact which in relation toothers has created a wrong impression.” We agree with the observationsmade in that case as a general rule, but there are exceptions to it. ThisCourt is a Court of appeal for the correction of errors of both fact andlaw committed by a subordinate Court from whose decision, an appeallies (s. 36 Courts Ordinance). It has before it a verbatim record of theevidence together with all the documents placed before the trial Judge.The Judge of first instance is also required by section 173 of the CivilProcedure Code to record his observations as to the demeanour of the
witnesses who give evidence before him. True it is that the trial Judgehas had tbe advantage of seeing and hearing the witness—an advantagewhich we do not have. But subject to that qualification the Court hasbefore it all the other.material on which the Judge of first instance arrivedat his conclusions of fact.
In England the Appellate Court is not in every case in theadvantageous position that we are in. That circumstance should not beoverlooked in applying some of the English dicta. In that country toothere are circumstances in which the appellate Court does review findingsof fact. Those are stated in a series of decisions as well known as thatcited by counsel. I shall here refer to some of them. In the case of8. S. Hontestroom v. S. 8. Sagaporack2 Lord Sumner suggested anapproach to the question which I think is useful for our purposealthough he was there dealing with an appeal from the Admiralty Court.He said : .
“ The material questions to my mind are : (1) Hoes it appear fromthe! President’s judgment that he made full judicial use of the opportu-nity given him by hearing the viva voce evidence ? (2) Was thereevidence before him, affecting the relative credibility of the witnesses,which would make the exercise of his critical faculties in judging thedemeanour of the witnesses a useful and necessary operation ? (3) Isthere any glaring improbability about the story accepted, sufficient initself to constitute * a governing fact which in relation to others has.created a wrong impression’, or aay specific misunderstanding ordisregard of a material fact, or any * extreme and overwhelming1 pressure ’ that has had the same effect?”
The next case is ‘Yuill v. Yuill 3 where Lord Greene, Master of theRolls, said :
“ We were reminded of certain well-known observations in theHouse of Lords dealing with the position of an appellate court whenthe judgment c-f the trial Judge has been based in whole or in part
1 (1935) A. C. 243.* (1927) A. C. 37 at p. 50'.
(1945) 1 All E. R. 183.
BASNAYAIvE, C.J.—Gunawardene v. Edirisinghe
upon his opinion of the demeanour of witnesses. It can, cf course,only he on the rarest occasions and in circumstances where theappellate court is convinced by the plainest considerations that it wouldhe justified in finding that the trial judge had formed a wrong opinion. 'But when the court is so convinced it is, in my opinion, entitled andindeed bound to give effect to its conviction. It has never been laiddown by the House of Lords that an appellate court has no power totake this course. Puisne Judges would be the last persons to layclaim to infallibility, even in assessing the demeanour of a -witness.The most experienced judge may, albeit rarely, be deceived by a cleverliar or- led to form an unfavourable opinion of an honest witness ormay express his view that his demeanour was excellent or bad, as thecase may be. … I may further point out that an impression asto the demeanour of a -witness ought not to be adopted by a trial judgewithout testing it against the whole of the evidence of the witness inquestion. If it can be demonstrated to conviction that a witnesswhose demeanour has been praised by the trial judge has on somecollateral matter deliberately given an untrue answer, the favourableview formed by the judge as to his demeanour must necessarily loseits value.'”
Lord Thankerton analysed the question and reduced what had beensaid before into the form of three propositions in the case of Watt orThomas v. Thomas1. They are as follows :—
“ I. Where a question of faot has been tried by a judge without ajury and there is no question of misdirection of himself by thejudge, an appellate court which is disposed to come to a differentconclusion on the printed evidence should not do so unless itis satisfied that any advantage enjoyed by the trial judge byreason of having seen and heard the witnesses could not besufficient to explain or justify the trial judge’s conclusion.
II. The appellate court may take the view that, without having seenor heard the witnesses, it is not in a position to come to anysatisfactory conclusion on the printed evidence.
The appellate court, either because the reasons given by the trialjudge are not satisfactory, or because it unmistakably so appearsfrom the evidence, may be satisfied that he has not takenproper advantage of his having seen and heard the witnesses,and the matter will then become at large for the appellatecourt.”
The instant case is one which comes within the third of the above rules.
1 (1947) 1 All E. B. 5S3 at 587.
Dissanayake v. Agricultural and Industrial Credit Corporation
Apart from the rules laid down by the Courts in England otherjurisdictions have also considered the matter. In the case ofI slip Pedigree Breeding Centre and others v. AbercromJby1 the Courtstated :
“if specific facts found by a Judge of first instance
necessarily lead to results which were demonstrably impossible, or soimprobable that they could not reasonably be accepted, an appellatetribunal would be justified in reaching the conclusion that the findingsof fact were open to challenge and that the evidence should beexamined afresh.”
In Forseth v. Prudential Trust Co.2 the Court stated :
" …. it is not only an appeal Court’s right,’ but its duty, to
disagree with the learned trial Judge on his findings of credibilitywhere he -has failed to use the advantage afforded him of having seenthe witnesses and observed their demeanour, in the witness-box orwhere he has failed to properly evaluate the evidence.”
We are of the opinion that the learned trial Judge is wrong in holdingagainst the plaintiff. We therefore set aside his judgment and directthat judgment be entered for the plaintiff as prayed for in his plaintwith costs.
The appellant is entitled to the costs of the appeal.
Sansoni, J.—I agree.