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S.H.A1K ALL! v. JAFFERJEE.
D. C., Colombo, 89.
Procedure—Trial without jury—Decision of judge on facts—Appeal there-from—Rule of conduct of Court of Appeal as to the weight to begiven to such decision—Judgment of the Su/preme Court-Concurrence of the majority of the judges—Appeal to the PrivyCouncil—Rule of Privy Council in cases of fact, and concurrentjudgments—Claim for further damages—Position of respondentwho has not■ appealed.
Where a case tried by a judge without a jury comes to the Courtof Appeal, the presumption is that the decision of the court belowon the facts is right, and that presumption must be displaced bythe appellant.
And where a majority of the Judges of the Supreme Court cone la-in a finding on fact in a case depending entirely upon conflictingevidence, the rule of the Privy Council is to dismiss the appeal.
A respondent who has not appealed cannot ask the AppellateCourt for anything but the dismissal of the appeal.
HE facts of the case are these. The plaintiff, after severalyears of residence in the Maidive Islands, returned to Ceylon
in September, 1893, in a sailing vessel belonging to the defendant,, and brought with him three cases of tortoise-shell. These caseswere admittedly put into bags marked with the plaintiff’s initials“ Che. Che.” After landing in Colombo plaintiff sought to obtaindelivery from the defendant, but was put off from time to timewith various excuses. Plaintiff, learning that the defendant wasabout to send the tortoise-shell away from Ceylon, brought thisaction against the defendant to recover them, and for damages,and for an injunction.
An interim injunction was granted on 7th November, 1893,and the action came on for trial before the District Court of Colombo,when evidence for both the parties was heard and judgmentgiven for plaintiff on 3rd September, 1894, that “ the defend-“ ant do deliver to the plaintiff the three packages of tortoise-“ shell now lying at the Colombo Customs, and marked
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“ ‘Che. Che.’ in Tamil characters and ‘ J. E.’ in English, and in“ default of delivery the defendant do pay to the plaintiff the value“ thereof, namely, the sum of Rs. 9,000.” And it was furtherordered that “ the defendant do pay to the plaintiff by way of“ damages the sum of Rs. 900 and his costs of the action.”
The defendant appealed to the Supreme Court.
The appeal was argued on the 21st and 25th June, 1895.
Layard, A.-G. (with him Morgan and Van Langenberg), fordefendant, appellant.
Ramanathan, S.-G. (with him Sampayo), for plaintiff, respond*ent.
Cur. adv. vult.
19th July, 1895. Bonser, C.J., after reviewing the evidencecame to the conclusion that plaintiff was entitled to a decree forthe delivery of the goods in question, but amended the decree asreported in 7- JV. L. R. 118.
The defendant in due course applied to the Supreme Court for,and obtained, a certificate under section 781 of the Civil ProcedureCode that the case was one fit for appeal to Her Majesty in Counciland on the 30th March, 1896, the case was heard in review byBonser, C.J., and Lawrie, J., and Withers, J.
Layard. A.-G. (with him Morgan and Van Langenberg), forappellant.
Ramanathan, S.-G. (with him Sampayo), for respondent.
Bonser, C.J., and Withers, J., affirmed the judgment in review,but Lawrie, J., dissented. The judgments of their lordshipswere as follows :—
I am of opinion that the judgment in review ought to be affirmed.It was for the appellant to satisfy us that the judgment of theCourt below was manifestly wrong. That judgment related to apure question of fact: Did the three cases containing tortoise-shell belong to the plaintiff or defendant ? The District Judgeunhesitatingly found that the plaintiff is the owner of the threecases, and their contents. That is his express finding. In theearlier part of his judgment he observes : “ I am perfectly satisfied“ that the plaintiff packed the three cases, and that he wrote his“ initials on the bags which formed the outside covering of the
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“ cases containing the shells. No one who heard the evidence of“ the plaintiff and of his Maidive boy, Madar Ali, would have any“ doubt on this point.”
Now, there is, evidence which may be true or false, that theplaintiff, during his residence at the Maldives, collected thesetortoise-shells, got them in the usual way from time to time bybargaining other goods for them, and that what he collected wasput in these cases and placed on board ship. All that evidencemay be false; but the District Judge had the witnesses beforehim, and had the opportunity of observing their demeanour, anadvantage which is denied us. I find it impossible for my partto say that his verdict is wrong. I am therefore for affirming thejudgment in review with costs.
I agree. ' Since this case was last before me, I have seen thejudgment of the English Court of Appeal in the case of the ColonialSecurities Trust Company, Limited, v. Massey and others (1896),
R. 1 Q. B. 38,* where a rule was laid down as to the duty ofa Court of Appeal when hearing a case which has been tried by aJudge without a jury. If that rule is to be applied to the present
* Lord Esher, M. R., said: “ What is the rule of conduct of the Court- ofAppeal when hearing an appeal on a question of fact from the judgment of a
Judge trying a case without a jury ?The Court of Appeal in Chancery
acted upon this rule that they would not allow an appeal unless they weresatified that the Judge was wrong. If they were in doubt at the end of theargument whether the Judge was right or wrong, since the burden of proof wason the appellant and he had not satisfied them that the Judge was wrong, they,dismissed the appeal. That is the rule of conduct which we ought now toapply in this Court. The Judge in the court below may have heard witnesses ;and if so the Court of Appeal would be more unwilling to set aside his judg-ment, especially if there was a conflict of evidence, than in a case tried onwritten evidence where the witnesses were not before the Judge, because of theopportunity afforded of judging how far the witnesses were, worthy of credit.Where witnesses are not examined before the Judge but the case is determinedon evidence taken on affidavit, or examination not before the Judge, or partlyon one and partly on the other, the Court of Appeal is not hampered by theconsideration that the Judge in the Court below has seen the witnesses, whilethe Court of Appeal has not, and the rule of conduct would not apply sostrongly, but still this Court would not reverse the judgment and give adifferent one, unless satisfied that the Judge was wrong.
“ I have frequently stated this rule, and I think it is well expressed by Lopes,L.J., in Savage v. Adam, IV. N. (95), 109 (11). The matter is thus stated:
‘ Where a case tried by a Judge without a jury comes to the Court of Appeal,the presumption isthat the decision of the Courtbelow on the facts was right,and that presumption must be displaced by the appellant. If he satisfactorilymakes out that the Judge below was wrong, then inasmuch as the appeal is inthe nature of a re-hearing, the decision should be reversed. If the case is left .in doubt, it is clearly the duty of the Court of Appeal not to disturb the decisionof the Court below.’ With the rule so stated I entirely agree."
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case, I must say that the appellant has not displaced the presump-tion that the decision of the District Judge on the facts is right;and I am therefore of the same opinion as I was when the casewas before me in appeal.
At the port of the Maidive Islands three boxes of tortoise-shellmarked with plaintiff’s initials were put on a ship bound toCeylon, of which defendant was the owner. The plaintiff was apassenger. No freight was charged, none was paid by the plaintiff.The defendant had the privilege of exporting goods free fromthe Middives. The plaintiff had not this privilege. Goodsexported by him from the Maldives were subject to a heavyexport duty. No export duty was paid by plaintiff for the tortoise-shell. . In the manifest, the boxes were entered as the propertyof the defendant. When the ship arrived in Colombo, theplaintiff did not take the boxes on shore. He paid no import dutyin Ceylon. The boxes were taken to the Custom House asthe property of the defendant. It having come to the plaintiff’sknowledge that the defendant proposed to ship the tortoise-shellto Calcutta, the plaintiff brought this action, asked for and got aninjunction and claimed the boxes. In consequence of the injunc-tion, these are still in the Custom House. The defendant claimedthe boxes and their contents as his own.
The burden of proof lay on the. plaintiff. On the evidenceadduced I hold that he has not proved that the boxes of tortoise-shell belonged to him.
I am not impressed by the confidence with which the DistrictJudge expressed himself. Mr. Conolly, when Acting DistrictJudge of Colombo, frequently expressed himself strongly; and, inmany cases in appeal, I have found that the stronger his languagethe weaker were his reasons.
With a sincere desire to do justice, he was, in my opinion, nota good judge of evidence. In this case, his judgment rests asmuch on fancies as on facts, and I feel myself more free than inthe ordinary case to weigh and to. appreciate the evidence formyself. My verdict is, that the plaintiff has not proved that thetortoise-shell is his property. I would set aside anebdismiss theaction with costs.
Against the decree of the .Supreme Court affirming the judg-ment in review, the defendant appealed to Her Majesty theQueen in Her Privy Council.
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Present,:—The Lord Chancellob, Lord Watson, LordHobhousb, Lord Macnaghtbn, and Lord Davey.
Ashton appeared for appellant.
Hinde (with him Corbet), for respondent:
24th March, 1899. Lobd Davey.—
This case comes before their lordships in a way which suggeststo them that it has not been disposed of by the learned Judge whotried the action in a way which is altogether satisfactory. Thejudgment of the learned Judge is certainly open to the criticismthat it is to a certain extent founded upon conjecture, and theconcurrence of the majority of the Judges in the Court of Appealreally does not carry the case very much further than the judg-ment of the District Judge.
In these circumstances, the only course that their lordshipscould take would be to direct a new trial, but they cannot be surethat such a course in a case like the present, which is solely a disputeof fact and depends entirely upon the conflicting evidence of natives,would more certainly do justice between the parties than to affirmthe judgment.
They will therefore adhere to the rule which they have laiddown for themselves, and which they usually find it useful tofollow in cases of this description, namely, not to disturb a judg-ment of the Court below on a question of fact on which there areconcurrent judgments, and on this ground they will dismiss theappeal, and they will humbly advise Her Majesty that the appealbe dismissed, and the appellant must pay the costs of it.
Hinde, for respondent.—In this matter there is a question ofdamages which I should like to mention to your lordships.
Lord Davey.—You have not appealed. You cannot have anyvariation.
Lord Hobhouse.—You cannot ask for anything but the dis-missal of the appeal. You have got all you want.
Hinde.—We got an order for delivery of the goods. We got anorder for Rs. 90 to be paid by way of rent. These articles, as yourlordships know, have been lying at the Customs warehouse. Thatrent has been going on for a period of four years, and I was goingto ask your lordships to give us permission to apply to the Courtjo Ceylon for them to assess the damages which have arisen inconsequence of delay.
Lord Davey.—We cannot give any such permission. All wecan do is to dismiss the appeal.
SHAIK ALLI v. JAFFERJEE