Mishra v Goberdhan [1972] FijiLawRp 21; [1972] 18 FLR 116 (18 August 1972)

[1972] 18 FLR 116

SUPREME COURT

Appellate Jurisdiction

CHANDRIKA PRASAD MISHRA

v

GOBERDHAN

Tuivaga Ag. J.

7th July, 18th August, 1972

Appeal — primary facts — magistrate's findings based on his view of veracity of witnesses — appellate court will not interfere except for convincing and compelling reasons.

Evidence and proof — magistrate's view of primary facts based on his assessment of veracity of witnesses — appellate court will not interfere without convincing and compelling reasons.

Where a magistrate has based his findings of primary facts upon his opinion of the veracity of the witnesses, convincing and compelling reasons must be shown before an appellate court can feel justified in differing from the magistrate's findings. Authorities considered.

Cases referred to:

Gopal Dass v Ram Dass Civil Appeal No. 1 of 1958 (unreported).

Yuill v Yuill [1945] P 15; [1945] 1 All ER183.

Watt v Thomas [1947] AC 484; [1947] 1 All ER 582.

Benmax v Austin Motor Co. Ltd. [1955] AC 370; [1955] 1 All ER 326.

S. S. Hontestroom v S. S. Sagaporack [1927] AC 37; 136 LT 33.

Powell v Streatham Manor Nursing Home [1935] AC 243; 152 LT 563.

Appeal to the Supreme Court from a judgment of the Magistrate's Court.

K. C. Ramrahha for the appellant.

H. A. L. Marquardt-Gray for the respondent.

The facts sufficiently appear from the judgment.

18th August 1972

TUIVAGA Ag. J.:

This is an appeal from the decision of the First Class Magistrate sitting in Suva in which judgment for the sum of $500 with costs was entered for the respondent in a claim for recovery of money allegedly given to the appellant by way of loan.

At the hearing of the appeal only one ground of appeal was relied upon and argued, namely,

"That the learned Magistrate misdirected himself in rejecting the evidence of the independent witness, Constable Jinna Swamy Gounder, in toto and thereby vitiated the whole judgment."

Learned counsel for the appellant submitted that the case against the appellant was one of complete fabrication on the part of the plaintiff and his witness, K. N. Sharma. He complained that the learned Magistrate did not properly assess and evaluate the evidence of police constable Gounder who was a completely independent and therefore reliable witness. It is said that the constable had no reasons to lie about his evidence. Counsel submitted that the constable's evidence clearly shows that the plaintiffs case was fabricated and that no money was ever owed by the defendant to the plaintiff. Counsel stated that although this is an appeal against the findings of fact from the learned Magistrate this Court has power to set aside such findings if it is convinced that the learned Magistrate was wrong in his decision. Counsel referred to the case of Gopal Gosai and Another v Ram Dass (Civil Appeal No. 1/1958) where the Fiji Court of Appeal substituted its own findings of fact for that of the primary judge. At page 7 - 8 of the judgment of the Fiji Court of Appeal the following obervations appear:—

"An Appeal Court is naturally extremely reluctant to differ from the findings of fact of a trial Judge. In certain cases, however, the Appeal Court not only has power to differ from the trial Judge but is under a duty to do so.

As Lord Green, M.R. says in Yuill v Yuill (C.A.) [1945] 1 All ER 183 at p.188:

"It can, of course, only be on the rarest occasions and in circumstances where the appellate court is convinced by the plainest considerations that it would be 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 and indeed bound to give effect to its conviction."

The question was carefully considered by the House of Lords in Watt v Thomas [1947] 1 All ER 582 and Lord Thankerton at p.587 summarizes the principles applicable. The third paragraph of his summary reads:

"The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakeably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court..."

The learned trial judge in his judgment has left the question of fact somewhat at large for this Court, in that he decided the matter of the credibility of the parties as witnesses, not on their demeanour or on consideration of their evidence as it was given, but only, or mainly, on its consistency with what he refers to as the surrounding circumstances. If then this Court differs as to the evaluation of those circumstances, then this Court might well find itself unable to accept his conclusion, which is that respondent was a witness of truth and appellants were not. Apart from a general statement that the evidence of the plaintiff and his witnesses is coherent and consistent with his case that this transaction was a mortgage and not a sale, the learned trial Judge does not state what impression was made on him by certain of the other witnesses."

The question that this Court must therefore decide is whether the learned Magistrate has, from the way he considered and adjudicated upon this case, left any questions of fact somewhat at large for this Court. If indeed he has then clearly this Court might well find itself unable to accept his conclusion in this case. It is thus necessary to examine the evidence given in this case and the manner in which such evidence has been assessed or evaluated.

The case for the plaintiff is that at about twelve noon on the 12th February, 1969 the plaintiff, defendant and one K. N. Sharma met at the United Photo Studios in pursuance of an earlier arrangement made by Sharma. In the Studio the question of a loan was discussed and it was agreed that the plaintiff would lend $500 to the defendant. This money was to be paid on Saturday, 15th February, 1969. On that particular day the plaintiff, the defendant and Sharma met at the same Studio and after signing Exhibit 1 in acknowledgement of the loan the defendant was paid $500 in fifty $10 notes. Sharma also gave evidence corroborating the plaintiff in all material respects in regard to that transaction.

The defendant gave evidence to the effect that he was not related to the plaintiff nor did he know him. The defendant completely denied having received the sum of $500 from the plaintiff by way of loan as alleged. To support his contention that the whole thing was a fabrication the defendant relied heavily upon the evidence of Constable Gounder whose evidence was that on the 19th September, 1970 he went with the defendant to the plaintiffs place of work i.e. B.P. Service Station and there he recorded in his notebook a conversation which allegedly took place between the defendant and the plaintiff of which an extract is as follows:

"The defendant said, "Do you know me?"
Reply: "I know you by your complexion."
The defendant said, "Do you know my name?"
Reply: "I don't know."
Defendant said, "Did you come to my home at any time?"
Reply: "No, but I have come to your office."
Defendant said, "I have no office."
Plaintiff said, "I don't want to talk with you — you are telling lies."
And then he went away."

Referring to the evidence of Constable Gounder the plaintiff said that about ten months previously the defendant had come to see him with a police constable at his office and at that meeting he told the police constable that he knew the defendant. The plaintiff said that it was a Saturday and that he was busy.

The learned Magistrate was thus faced with two diametrically opposed stories concerning the alleged loan transaction. There can be no doubt that the learned Magistrate fully appreciated the position as is clear from the last paragraph of his judgment at page 20 of the Record which reads:—

"In the event the decision in this case depends upon whom I believe. I accept the evidence of the plaintiff and his witnesses and reject that of the defendant and his witnesses in so far as it relates to the facts in issue in this case. On the balance of probabilities I am satisfied that on the 15. 2. 69 the defendant did borrow the sum of $500 cash from the plaintiff in the manner and on terms stated in the evidence and further on the 18. 8. 70 the defendant was served with a writ of summons as stated by Seremaia Tavua in his evidence."

It seems to me that the present case can be distinguished from that of Gopal Gosai and Another v Ram Dass cited above in that the present case was decided mainly upon the credibility of the witnesses including that of Constable Gounder as judged from their demeanour when giving evidence during the hearing. It is an established rule that an appellate court will not interfere with the findings of facts based solely or mainly on an assessment of the credibility of witnesses. This was recognised by Lord Reid in the case Benmax v Austin Motor Company Limited [1955] 1 All ER where at page 329 he stated:—

"But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an Appellate Court is generally in as good a position to evaluate the evidence as the trial Judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."

A similar point was made in the speech of Lord Sumner in S. S. Hontestroom v S. S. Sagaporack [1927] AC 37 where he said

"None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone."

Lord Wright made a similar point in Powell v Streatham Manor Nursing Home [1935] AC 243 where he stated: —

"Before a court of appeal upsets a finding into which credibility enters it should be convinced that the primary judge is wrong. The court of appeal is not entitled to ignore findings based on credibility and to consider probabilities on the written material."

In Watt or Thomas v Thomas [1947] AC 484 Lord Thankerton described the principle as a simple one and stated it thus: —

"I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion;
II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;
III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakeably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question.

Dealing in his judgment with the evidence of Constable Gounder the learned Magistrate stated as follows:—

"It seems that the witness, a police constable, went with defendant to see the plaintiff at B.P. Service Station on the 19. 9. 70 (i.e. over 18 months after the alleged loan transaction) and at the interview it was clear that the plaintiff did not want anything to do with the defendant. In all the circumstances this is understandable."

The learned Magistrate also observed how well the plaintiff faced the searching cross-examination to which he was subjected. Furthermore he stated that the cross-examination of the witness, Sharma, gave him no cause to doubt his veracity. The learned Magistrate was clearly impressed with them. On the evidence I am satisfied that the conclusion that the learned Magistrate reached was one open to him. Whether or not I might reach the same conclusion upon the same facts is not the question in this appeal. It is also clear on the authorities that an appellate court will be more ready to disturb a decision of fact of a primary court if the decision relates to inferences from proved facts. However, the present case is different in that the primary facts are the very subject for adjudication by the learned Magistrate. In such a case convincing and compelling reason must be shown before an appellate court can feel justified in differing from the learned Magistrate's findings upon the primary facts. I am satisfied that the learned Magistrate has considered and discussed all the relevant circumstances in this case and no questions of fact are left at large for determination by this Court. There is in my view ample material to support his conclusion.

In the result this appeal fails and is dismissed with costs.

Appeal dismissed.