ELIYATAMBY v. GABRIEL

080-NLR-NLR-V-25-ELIYATAMBY-v.-GABRIEL.pdf


(‘ 373 )
Present: Bertram C.J. and Porter J.ELIYATAMBY v. GABRIEL.
260—D. C. Colombo, 5,083.
Evidence—Action for divorce and damages—Confession of misconduct bywife in presence of husband and co-respondent—Subsequent lettersby wife to * co-respondent—Reference to misconduct in letters—Letters produced in evidence against wife—Admission by plaintiff'scounsel that letters were inadmissible against co-respondent—Letters referred to in cross-examination by counsel for co-respond-ent—Plaintiffs contention in appeal that letters were admissibleagainst co-respondent—Fact in issue—Relevant fact—•Hearsay—Evidence Ordinance, ss. 7 and 9—Appeal.
Plaintiff brought an action against his wife for divorce on theground of adultery with the second defendant. He also claimeddamages against the second defendant. Plaintiff found his wife atthe house of a neighbour in a state of intoxication. He brought herhome, and called the second defendant to assist him to compose hiswife. The wife still suffering from the effects of intoxication,charged the second defendant with misconduct with her. TheplaintifE treated the remarks then as due to intoxication.
Within two or three days of this incident, the wife began toaddress a series of secret letters in rapid succession to the seconddefendant, in which reference was made to the above incident andto other acts of misconduct. The plaintiff intercepted theseletters.' At the trial the wife did not contest the case. Theplaintiff’s counsel produced the letters as against the wife. Thecounsel for the second defendant contended that these letters werenot evidence against him. The plaintiffs counsel admitted that thiswas so. The second defendant’s counsel, fearing that the letters ’might prejudice his client in the mind of the Court and with thepublic, required all the letters of the series should be produced, butreserved to himself the right to object that the letters were notevidence against his client. The second defendant’s counsel referredto the letters freely in his cross-examination of the plaintiff, andwent so far as to challenge the whole case even as against the wife.
The plaintiff’s counsel in his summing up again admitted that theletters were not evidence against the second defendant.
eld, that as soon as these letters were used by the defence forthe purpose of challenging the plaintiff’s honour and 6ona fides,they became part of the case between these two parties for allpurposes.
The letters were also relevant evidence against the second defend-ant by reason of the provisions of the Evidence Ordinance.
“ The alleged misconduct of the parties is a fact in issue in this' case, but so also is the interview between husband, wife, and secondrespondent at which the wife made her confession. This interviewmay also be regarded as a relevant fact. Section 7 declares thatfacts which are the effect of any relevant fact or fact in issue are
1923.
1923.
EliyaUmby
v.
Gabriel
( 374 )
themselves relevant. A series of letters addressed by one of theparties to the interview to the other party affiected by her confessionmay be considered as one of the effects of that interview. Section 9*is more specific. The interview above referred to is a fact in issue.Section 9 declares that any facts ‘which support or rebut aninference suggested by a fact in issue1 are relevant in so far asthey are necessary for that purpose.”
A party who makes an admission on a point of law at the trial isnot bound by that admission in appeal.
'j'flE facts axe set out in the judgment.
EUiolt, K.C. (with him Samarawickreme, B. F. de Silva, Amara-sekera, and Ferdinands), for plaintiff, appellant.
H. J. C. Pereira, K.C. (with him Soertsz, H. V. Perera, and L. M.de Silva), for the co-respondent, respondent.
December 19, 1923. Bertram C.J.—
This is an action‘brought by the plaintiff for divorce from his wife,the first respondent, on the ground of her alleged misconduct withthe second respondent. The action originated in the followingmanner : Plaintiff and the second respondent were friends, and thefriendship was shared by the first respondent. The second re-spondent had at one time lived in plaintiffs house, and since thattime had been a frequent visitor and an associate of the wholefamily. On February 10, 1922, plaintiff was distressed to find hiswife at the house of a neighbour in a state of violent intoxication.He succeeded in getting her home, and brought his friend, the secondrespondent, to the house to assist him to compose his wife. At theinterview in the house, the wife, still suffering from the effects ofintoxication, made a dramatic confession of infidelity to her husband,and charged the second respondent with being a participator in herguilt. The second respondent made no reply to the accusation.The condition of the first respondent was such that the husband wasperplexed as to how the remark ought to be regarded. He wasreluctant to believe his friend guilty of such treachery, and, for thetime .being, treated the remark as the result of a halucination dueto the condition of intoxication in which his wife was. All threesat down to dinner, and the second respondent shortly afterwardsleft, the wife begging him to return in the morning.
Within two or three days of this singular incident, the wife beganto address a series of secret letters to the second respondent. In thefirst of these reference was made to the interview above described.These letters followed rapidly one upon the other. They wereintercepted by the husband. Their terms at first left him in somedoubt as to whether any misconduct had actually been committed,but as time proceeded, their references became unequivocal. Mainly
( 375 )
as the result of these letters, and of a communication from theservant to whom the wife had entrusted them, he instituted theseproceedings.
At the trial in the District Court plaintiff necessarily presented hiscase against the two respondents together. The wife did notappear, and wrote to the Court disclaiming any defence, but theplaintiff, nevertheless, had to prove a case against her. As anessential part of the case against the first respondent, counsel for theplaintiff referred to these letters in the opening.
It was impossible for counsel for the second respondent to objecteither to the opening or the production of these letters. He con-tended, both here and in the Court below, that these letters were inno way evidence against his client. Assuming that this is so, histechnically correct course would have been to have left theseletters severely alone, and to have confined himself in his defence,to the other evidence of the alleged misconduct. This course,however, though technically correct, he felt to be practically impos-sible. He realized that these letters were of such a character that,if unchallenged, they might prejudice his client unconsciously in themind of the Court, and that they would certainly prejudice him withthe public. At an early stage in the trial he declared that he wasanxious for the fullest investigation, and required that all the lettersof the series should be produced, and not only those which plaintiffs’counsel had put in, but reserved to himself the right to object thatthe letters were not evidence against his own client. Counsel forplaintiff freely admitted that the letters were not evidence againstthe second respondent, and the case was fought upon this singularand artificial footing.
As the case proceeded, however, the contents of the lettersbecame an inseparable part of the trial. Second respondent’scounsel, in connection with these letters, set up several pleas, neteasily reconcilable with one another. He argued, in the first place,that these letters were the outcome of a mental and sexual disorderknown as nymphomania. He contended, in the second place, thatthe action by the husband was mold fide: that he was inspirednot by honest indignation, but by social jealousy; and that hismotive was blackmail, and that he himself had taken advantage ofthe drinking habits of his wife to inspire her to fabricate theseletters.
The plaintiff was severely cross-examined from this point of view,and the letters were freely referred to in order to support it and inorder to enforce the suggestion of nymphomania. Counsel for thedefence wen tfurther. Feeling that his client might suffer inreputation if a verdict were taken against the wife on the ground ofher own confession, and if the action against his own client weredismissed because of insufficiency of evidence, he challenged thewhole case against the first respondent, and sought to persuade the
1923*
Bertram
C.J.
Eliyatamby
v.
Gabriel
1923,
Bertram
CJ.
EHyaktmby
v.
Gabriel
( 376 )
Judge that even as against her, in spite of her explicit confession,judgment ought not to be entered.
In spite of all these developments, counsel for the plaintiff, inpursuance of his original undertaking, formally admitted in hissumming up that the letters could not be treated as evidence againstthe second respondent, and the learned District Judge, in his judg-ment, so ruled. He further ruled, with perfect correctness, thatthe confession of the wife to her husband in the presence of thesecond respondent was not in itself evidence against the secondrespondent, but was relevant ooly for the purpose of enabling theCourt to judge of the conduct of the second respondent upon thatconfession.
Apart from the interview and the letters, there was a definite bodyof other evidence against the second respondent. Two friends ofthe plaintiff, whose evidence there is no reason to impeach, spoke tofinding the second respondent in the company of the wife undercircumstances which they considered suspicious. The plaintiff’schauffeur (who had brought him the letters) testified to certain actsof familiarity and intimate behaviour on the part of the two respond-ents. He and another servant spoke of them being on severaloccasions together in the plaintiff’s bedroom in the absence of theplaintiff. The second respondent denied the alleged acts of fami-liarity, but admitted that in view of his intimacy with the familyand his frequent visits to the house he may well have been in theplaintiff’s bedroom with the first respondent. He protested that,if so, his presence there was wholly innocent, and that the inferencesought to be drawn by the witnesses for the plaintiff were unjustified.The confession of the wife in her husband’s presence he said he hadregarded as the utterance of a disordered nature under the influenceof intoxication.
The learned District Judge ruled out the letters, arid, havingdecided that the wife’s confession could be regarded only in so far asit affected and threw light upon the behaviour of the second respond-ent, considered that he had to approach the other evidence, asthough everything said in connection with the letters were excludedfrom his mind, and that he was to weigh it and adjudge it as hewould have weighed it and adjudged it if this was the only evidencebrought before him. He came to the conclusion that the evidencewas not of such a character as would have justified him, under suchcircumstances, in finding misconduct against the second respondent.
As against the wife he considers the case fully proved. In asomewhat difficult passage in his judgment he then separatelyaddressed himself to the plea of defendant’s counsel that, notwith-standing first defendant’s confession and letters, he should dismissthe case against her also on the ground that both confession andletters were the emanations of a delusion. He examined this plea,and came to the conclusion that* the letters were not the emanation
( 377 )
of a delusion, but were genuine and spontaneous letters referring toa state of facts which actually existed. We, therefore, rejected thesuggestion of counsel for the second respondent that he shoulddismiss the case against the wife.
With regard to the conclusions of the learned District Judge, uponthe evidence other than the wife’s confession and letters, it does notappear to me that it is open to any serious criticism. The taskwhich he had to discharge was an artificial one, but not moreartificial than that whioh judges in similar situations have to dis-charge. It frequency happens in divorce cases that a decree is givenagainst a wife on her own confession, but that the case against the- co-respondent, based on that confession, has to be dismissed becausethere is no other evidence against him. _ In this case there was aconsiderable body of evidence against the second respondent, andthis made the learned Judge’s task more difficult. Undoubtedlythere was adequate evidence to justify him in finding a verdictagainst the second respondent, but the evidence, in my opinion,was not of such a character that the learned District Judge wasbound to give effect to it.
But all this is on the supposition that the evidence of the letterswhich were the origin and moving faotor in the case was entirely to beleft out of consideration. As the case developed, it evolved in theminds of those conducting it, the peculiar assumption that the letterscould not be used to prejudice the second respondent, but that theymight, nevertheless, be used by the second respondent in everypossible way to prejudice the plaintiff. I am at a loss to understandhow this position can be accepted. I can hardly suppose that thelearned Judge would have permitted the case to proceed on this basisif he had not been misled by the agreement of counsel at the bar.As soon as these letters were used by the defence for the purpose ofchallenging the plaintiff’s honour and bonafides, they became part ofthe case between these two parties for all .purposes. They were“ in ” as between these two parties. They became an essentialpart of the case, and were bound to be adjudicated upon by theCourt. No doubt artificial situations often arise in divorce cases,but the manner in which the letters were dealt with in this caseseems to me to carry artificiality beyond all allowable limits.
It is quite true that this peculiar process grew up out of anadmission made by plaintiff’s counsel in a certain spirit of astutegenerosity, but in his petition of appeal, and in this Court, plaintiff’scounsel abandoned that position. We have ruled in a previous case,Perera v. Samarakoon1 that he is entitled to do so, and Mr. H. J. C.Pereira is not able to contest this authority. We, at any rate, whoin this Court, have to adjudicate upon the merits of this case cannotrecognize so artificial a position. We must ask ourselves whether in
1 (2922) 23 N. L. P. 502.
1928.
Berts am.
C.J.
Eliyatomby
v.
Gabriel
( 378 )
1923.
Bertram
C.J.
Eliyatambyv.
Gabriel
fact the letters were evidence against the second respondent, and,if so, what bearing they have upon the case.
In my own opinion they were evidence against the second respond-ent, both by reason of the use that was made of them by thedefence and also by reason of the principles of the law of Evidencein force in this Colony. I have already explained my view withregard to the first of these heads. That view, if justified, is in itselfsufficient to require us to examine the letters, but as the principlesof our law of Evidence were, in fact, discussed before us, and as thecase is of some general importance, I think it well that we shouldexpress ourselves on this aspect of the matter.
Although the Evidence Ordinance has now been in force in thisColony for nearly a generation, counsel and Judges of experience,in arguing and deciding upon questions of evidence, proceed, as arule, not so much upon a recollection of the precise words of ourCode, but rather instinctively upon the unconscious tradition whichsurvives in our Courts from the days before the Evidence Ordinancewhen our law was identical with the law of England. So also at theEnglish Bar these questions of evidence are, as a rule, decided uponthe basis of general principles instinctively realized, but seldomconsciously formulated. Perhaps the most rooted of these instinc-tive principles in the law of England is that which prohibits hearsayevidence. A fact is said to be proved by hearsay evidence whenevidence is given either that a statement as to the fact was made bysome person not called as a witness, or that a statement as to thefact is contained in some letter, book, or document. There arecertain well-known and recognized exceptions to this rule, but wherethese exceptions cannot be invoked the mind of a lawyer bred onEnglish principles revolts at the idea of a man being prejudiced bythe production of a letter written by a person not called as a witnessand not subjected to cross-examination. There is another principleconnected with that just described. It is recognized that remarksmay. be made or letters may be written which may have an intimatebearing on a case under trial.- If brought to the notice of the party^sought to be charged by them, they may have great importancewhen considered in connection with his conduct with regard tothem. In such cases the English lawyer instinctively asks, when itis sought to tender in evidence an utterance or a letter : “ Was thedefendant present when this was said ? ”or “ was this letter broughtto the notice of the defendant ? ” If the answer is in the negative,he objeots to the remark or the letter being admitted in evidence.
In the Courts of our Colony, however, we are governed not by thegeneral principles of the law of England, but by the express enact-ments of the Evidence Ordinance. It is a singular thing, however,that our Evidence Ordinance contains no general prohibition ofhearsay, nor does it anywhere specifically prohibit the use of aremark or a letter against a person not responsible for it, where the
( 379 )
remark or the letter was not brought before him iiwsuch circum-stances as toaffect his action. If the history of the Ordinanceis read,as it may be read in the Appendix to Ameer All's Treatise, it fullyconfirms the effect which the Act itself produces. The principledraftsman of the Code rejected with a certain animus the whole ofthe English law of hearsay. Instead of its negative provisionswhich exclude this or that type of evidence, he substituted positiveenactments enumerating and declaring what should be treated asevidence, and for the English theory of admissibility and inadmissi-bility he substituted the new doctrine of relevancy, enacting thatevidence might be given of all facts declared by the Code to berelevant and of no others (section 5). A trace -of the Englishaversion to hearsay is to be found in section 60, which declares thatoral evidence must in all cases whatever be direct, and it is sometimesthought that this provision reimports into our Code the Englishprohibition of hearsay. But the section is obviously insufficient forthe purpose. It is in particular deficient in the present case, wherethe evidence in question is not oral evidence but consists of letters.
Among the statements declared to be relevant are those enu-merated in section 32. This section deals with statements bypersons who cannot be called as witnesses, and it embodies many ofthe recognized exceptions to the English rule excluding hearsay.It might possibly be thought that by implication from this sectionall other statements by persons not called as witnesses are necessarilyirrelevant, and that for the purpose of more precisely defining thisprinciple (which is nowhere expressly laid down in the Ordinance)we must have recourse to section 100 which allows us, in this Colony,to have recourse to the English law of Evidence for the purpose ofquestions not provided for in our Ordinance. I do not think,however, that this is possible. Statements by persons not calledas witnesses are referred to as relevant in several places in chapter 2.It cannot be said that these questions are not provided for. Theyare provided for in a different way.
We are, therefore, reduced to an examination of chapter 2 of theEvidence Ordinance, in order to satisfy ourselves whether, in thecircumstances of the case, these letters are to be considered as“ relevant.” Two sections, which during the argument were dis-cussed as having a specific bearing on the case, may be at oncerejected. The first is section 19, which deals with the use ofadmissions made by certain persons who are strangers to a suitagainst a party to a suit. It is hardly necessary to consider thespecial history of that section or the phraseology which has beenused in its enlargement into a general principle. The persons thereunder consideration are persons who are not parties to a suit at all,and the section has no bearing op the use of an admission by oneof two respondents against the other. In any case, the word“ liability ” means a pecuniary and contractual liability, and the25/29
1923.
Bertram
C.J.
fclf'yatamby'•abriel
( 380 )
1923.
Bb&tram
C.J.
MiyaUmby
v.
Gabriel
word “ position99 has no reference to such a situation as that whichwe are now discussing. The other section was section 10, whichrefers to things said or done by conspirators in reference to theircommon design. That section, too, has a special history* and isintended to deal with a special elass of facts. Quite apart from theinappropriateness of describing a guilty relationship of this sort, as aconspiracy to commit an actionable wrong, it is clear that theseletters cannot aptly be described in the words of this section as beingwritten by one of the parties of the relationship “ in reference totheir common intention*”
There are, however, certain sections which have a more immediatebearing upon the ease, and these are sections 7 and 9, which 1 willproceed to consider.
First, as to section 7. The alleged misconduct of the parties is afact in issue in this case, but so also (see definition in section 3) is theinterview between husband, wife, and second respondent at whichthe wife made her confession. This interview may also be regardedas a relevant fact. Section 7 declares that facts which are the effectof any relevant fact or fact in issue are themselves relevant. A seriesof letters secretly addressed by one of the parties to this interviewto the other party affected by her confession may surely be con-sidered as one of the effects of that interview.
Section 9, however, is more specific. As I have said, the interviewabpve referred to is a fact in issue. Section 9 declares that any facts“ which support or rebut an inference suggested by a fact in issue 99are relevant in so far as they are necessary for that purpose. Twoinferences were in fact suggested by this interview. The first isthat suggested by the plaintiff that the silence and inaction of thesecond respondent on the confession being made were due to theembarrassment caused by a consciousness of guilt. The other wasthat suggested on behalf of the second respondent, namely, that hewas silent because he treated this confession as the ravings of a'lisordered mind. A series of letters written by the wife, who madethe statement, to the second respondent, in whose hearing she madeif, following almost immediately upon the making of it, supports thefirst of these inferences and rebuts the second. They disclose arelationship between the parties which is fatal to the inferencesuggested by the respondent. Again, section 9 declares that facts1 * which show the relation of parties by whom any fact in issue wastransacted are relevant.’* It is difficult to see how it can be saidthat these letters do not show the relation of the parties to thisinterview. I am conscious that by bringing the letters under thishead I am in fact laying down that any intercepted correspondencebetween the respondents in divorce cases may be considered asevidence against the person fo whom it is addressed, and I appreciatethe danger of this latitude, but our duty is to interpret the words ofthe section.
( 381 )
Two observations may here be made. The first is that in thepresent ease we know the contents of the letters, and we can readthem in order to judge of their relevancy. In all ordinary cases,however, the Judge would have to rule on the admissibility of thedocument without seeing it. He would have to judge from all thecircumstances of the case whether it was calculated to be of such anature as to be admissible, as being the effect of a fact in issue, or asexplaining the relation of parties, or as confirming or rebutting apossible inference, as the case may be. The second observation isthis. If we consider the question from the point of view of commonsense, and not from the point of view of our English prepossessions,I think that everybody would feel that where two persons aresuspected of being in a relationship of this sort, any communicationspassing between them, even though they do not actually reach theperson to whom they are addressed, axe most material for thepurpose of determining whether such relationship in fact existed.
It appears to me, therefore, that both upon the ground of the usemade of the letters by counsel for the respondent and upon theground of the principal of our law of Evidence, these lettersconstitute evidence which must be considered for the purpose ofdetermining the issues in this action. Are these letters genuineletters ? or, are they, on the other hand, either the result of amalicious fabrication or the emanations of a sexually disorderedmind ? The first of these alternatives may be wholly rejected.There is nothing whatever to support it. These documents areobviously not fabrications. When they are read, they make thewhole of the action of the plaintiff, taken upon them, perfectly clear.There is no occasion or justification for imputing to him any indirectmotive with regard to them. With regard to the other alternativeit is suggested that they are symptoms of nymphomania, and it issingular that this contention, so vital to the respondent’s case, hasbeen so inadequately presented. No evidence has been given onthe subject, except by himself and another member of the professionwho, for reasons given by the learned Judge, must be regarded as,to some extent, in the nature of a partisan. A practitioner of thegreatest eminence was called into the witness box, but no questionswere put to him as to the nature of this supposed disorder. Thereis a reference to it in one of the cases cited to us, which indicatesthat it is the result of an affection of the uterus. It appears to beof the nature of hysteria, and to take the form of delusions on thepart of the person affected by it that she has taken part in acts ofsexual intimacy which, in fact, have never occurred. It appears tobe suggested by the second respondent that an early and premonitorysymptom of the disorder may be the existence of excessive activityof the sexual instinct, indicated by acts of amorous behaviour. Allthat can be said on this point, in the absence of any medical evidence,is that neither in the actions of the first respondent nor in the terms
1923.
Bertram
C.J.
Eliyatamhf/
r.
Gabriel
( 382 )
1923.
Bertram
C.J.
Eliyatamby
v.
Gabriel
of her letters is there anything to justify the imputation to her ofthis mental disorder. The second respondent, himself, says thathe was frequently and continuously in her company, but he saw nosymptoms of the disorder and never suspected its existence untilthese letters were written. The letters seem the natural out-pourings of a nature involved in a illieit relationship. They makereferences to facts and circumstances which -are shown to be true,and they produce upon the mind the vivid impression of being themirrors of fact. There is one expression, indeed, which, if it bearsthe meaning it seems to bear, is of a shocking and revolting character,but I agree with the learned District Judge that it does not displacethe impression caused by the letters as a whole. .
It appears to me that these letters are decisive of the case. Forthe reasons I have given, I think they ought not to have beenexcluded by the learned Judge. When the case against the secondrespondent is supplemented by these letters, they clinch the evidencegiven by the other witnesses, and place the general truth of theirevidence beyond reasonable doubt. In my opinion, therefore, theappeal of the plaintiff should be allowed, and the cross appeal of thesecond respondent, the admissibility of which was not seriouslypressed, must be dismissed, in both cases with costs in both Courts.
It becomes necessary for us to assess damages against the secondrespondent. The plaintiff disclaimed any desire to receive anydamages at all, and indicated his intention of appropriating anydamages he may be awarded to charity. As, however, this is anaction for damages, it is necessary that we should assess them. Suchan injury cannot adequately be assessed in pecuniary terms. Ifdamages are awarded it is for the purpose of expressing the repro-bation of the Court and of society. In the present case, in view ofcosts already incurred, that reprobation may be definitely, thoughof course not adequately, vindicated by the assessment of damagesat Rs. 5,000. The costs should be taxed on the basis of this amount.
Porter J.—
I have read the judgment of his Lordship the Chief Justice andagree with his decision in this case, and I agree with his observationsas to the admissibility of the documentary evidence, and I considerthat the evidence against both the respondent and the co-respondent,apart from the letters, is amply sufficient to justify the finding.
There is, against both respondents, the evidence of the chauffeurregarding what he saw reflected in the windscreen.
The evidence of the maid servant of the visits of the co-respondentin the absence of the plaintiff when the co-respondent spent longperiods with the respondent in the plaintiff’s bedroom at times whenthe co-respondent must have known of the plaintiff’s absence, forinstance, when the plaintiff and the children were away at the races.
The co-respondent admits his being with the respondent on thisand on many occasions in the plaintiff’s bedroom in the absence ofthe plaintiff, but says, in view of his intimacy with the family, hispresence there was wholly innocent, and that the inferences soughtto be drawn by the witnesses for the plaintiff were unjustified.
I think the appeal of the plaintiff should be allowed, and thecross appeal be dismissed in both cases, with costs in both Courts.
It is necessary to assess damages against the second defendant.Counsel for the plaintiff disclaimed any desire to receive damages,and that any damages awarded would be given to charity.
I would therefore award damages of Rs. 5,000 and costs on thisscale against the co-respondent not as a measure of their adequacy,which cannot be assessed in pecuniary terms, but as expressing thereprobation of the conduct of the co-respondent.
1988.
POBTEB J.
Eliyatamby
v.
Gabriel
Appeal allowed.