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Present: Bertram 0. J. and De Sampayo J.- MANIANT v. SANMUGAM.
20—D. C. Colombo, 52,029.
Objection that the evidence woe formally defective to justify finding—
Question of law—Objection not taken in the District Court—
Raising question for the first Urns on appeal.
At the hearing the plaintiff swore that he gave defendant somejewellery. Defendant’s counsel stated that he would not cross-examine on this point, but that he would call the defendant todeny it, and leave it to the Court to decide on the credibility ofthe parties. The defendant, however, was not called as a witness.The Judge decided for the plaintiff on this item. On appealcounsel urged that the evidence was formally insufficient to justifythe finding, as the plaintiff did not say in express terms that hesupplied the jewellery.
Held, that as the point was not taken in the lower Court,'thepoint could not (in the circumstances of this case) be taken inappeal,
“ The point is, in effect, a point of law …. The caseseems to me to come within the principles enunciated in the caseof The Tasmania.1 ”
> (1890) 16 A. O. 223.
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rj^HE facts appear from the judgment.
H. J. C. Pereira, for appellant.
Drieberg (with him E. W, Jayatvardene&nd Joseph), for respondent.
October 18, 1920. Bertram C.J.—
This is an action between two members of the same family*,plaintiff being a nephew of the defendant. For some time theplaintiff was in the service of the defendant, and during an illnessof the defendant took charge of his business. On his recovery itappears that the defendant had good reason to suspect the honestyof the plaintiff in the management of his affairs. He alleged thatthe plaintiff had misappropriated some of his moneys; arrangementswere, however, made for an amicable settlement, and, as a result ofan arbitration, plaintiff paid Rs. 100 to the defendant, and gave ajoint and several promissory note, signed by himself and his father,for the sum of Rs. 1,250. At the time of this settlement there wereother questions at issue between the parties; some of these questionswere mentioned, others were not. It is by no means clear thatthere Was any intention to include any of these questions-in thesettlement. The defendant had no doubt goodreason to believe thatthis was the intention, and this may have been his understandingof the matter. But the onus lies on him to satisfy the Court thatsuch was, in fact, the intention. The learned District Judge aftercareful consideration has come to the conclusion that that onus hasnot been discharged/ and no sufficient reason has been adduced tous on the appeal for over-ruling tbis decision of the learned Judge.
The learned Judge on going into these other questions hadallowed some claims put forward by the plaintiff and has disallowedothers, and in the nett result has given judgment for the plaintiff.The only one of these transactions to which we now need referrelated to a proposed marriage between the plaintiff and a sister ofthe defendant, which ultimately did not take place. The plaintiffin his plaint alleged that, in pursuance of the arrangements for themarriage, he entrusted to the defendant a “tali ” and certain otherarticles of the aggregate value of Rs. 390, and claimed that as themarriage had not taken place, these articles, or their value, shouldbe returned to him. It is not disputed that if the facts were asalleged this was a legitimate claim.
At the hearing of the action plaintiff swore that for the purposeof the marriage he supplied a “ tali,” stating its value, and givingparticulars of the other property. Towards the close of the cross-examination of the plaintiff, Mr. Elliott, who appeared for thedefendant, stated that “ as regards the claim for jewellery, para-phernalia, &c., he does not cross-examine because the defendant
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will deny, and will rolyon the question of credibility.” As a matterof fact, the defendant ultimately was not oalled. It is explainedthat the case was a protracted one; that it related to painfulfamily matters; and that the defendant, when the time oame forhim to give evidence, preferred to leave things as they stood, and totake no further trouble in the matter. For the first time on appeal,Mr. H. J. C. Pereira, in scrutinizing the reoord, found that theevidenoeis formally insufficient to justify the learned Judge’s finding of facton this item. The plaintiff does not say in express terms that hesupplied the “ tali ” and other articles to the defendant. The onlyperson referred to as taking part in the arrangements is defendant’smother. It is not proved, therefore, as the evidence stands, thatdefendant was party to that arrangement. This point was not takenin the Court below; it could not have been raised in the argumentof counsel, as the learned Judge makes no reference to it in hisjudgment. The fact that Mr. Elliott said he would call the defend -ant to contradict the evidence of the plaintiff indicates that heunderstood the evidence in the same sense in which it was understood;by the learned District Judge, because if it was understood in anyother sense there was nothing for the defendant to contradict. Thepoint is, in effect, a point of law. It is not that in a confiiot oftestimony the learned Judge’s finding is wrong, but that there isno evidence on record to justify the finding. It is, in fact, a pointwhich might be taken in a case in which, under the law, no appeallay on a question of fact. The case seems to me to .come Withinthe principles enunciated in the case of The Tasmania.1 The lawis thus put by Lord Herschell on page 225: “ It appears to me.that under these circumstances a Court of Appeal ought only todecide in favour of an appellant on a ground there put forward forthe first time, if it be satisfied beyond doubt, first, that it has beforeit all the facts bearing upon the new contention, as completely aswould have been the case if the controversy had arisen at the trial;and next, that no satisfactory explanation had been offered bythose whose conduct has been impugned if an opportunity forexplanation had been afforded them when in the witness box.”Had the point been taken in the Court below, I have not the leastdoubt that the learned Judge would have had the necessary witnessesrecalled so as to clear up the obscurity. I think we should beacting in accordance with the principles laid down by the House ofLords in The Tasmania1 and' often followed by this..Court if wedeclared that this point cannot be taken on the present appeal.
In my opinion the appeal should be dismissed, with costs.
Dje Sampayo J.—I agree.
1 U890) 1$ A. O. 223.
MANIAN v. SANMUGAM