De Sa v Amin (C.A. 27/1933.) [1937] EACA 13 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J., Ag. P. (Uganda), SIR JOSEPH SHERIDAN, C. J. (Tanganyika), and LUCIE-SMITH, Ag. C. J. (Kenya).

JOHN CANCIO DE SA (Appellant) (Original Defendant No. 1) $v.$

> V. N. AMIN (Respondent) (Original Plaintiff). C. A. $27/1933$ .

Expert Evidence.

Held (10-1-34).—That expert evidence, though but an expression of opinion, was properly taken into consideration by the trial judge.

Figgis, $K. C.$ (Hopley with him) for Appellant.

Schwartze (Amin with him) for Respondent.

The respondent, as a plaintiff in the Supreme Court of Kenya, obtained a decree against one Peter Santan Gama and obtained an attachment on certain moneys due to Gama from the National Bank of India. The appellant in a subsequent case obtained a decree by consent against Gama on two promissory notes for Sh. 2,000 and Sh. 8,500, dated 2nd December, 1931, and 1st September, 1932, respectively.

The respondent in this appeal, Amin, brought an action in the Supreme Court of Kenya to have the decree obtained by De Sa (the present appellant) against Gama set aside, alleging that that decree was obtained fraudulently and collusively. Judgment was given that the decree attacked be set aside, and the attachment granted in execution thereof be rescinded. Ffrom that judgment the appellant brought the present appeal, alleging inter alia that the finding was against the weight of evidence; that the trial Judge did not direct his mind to the fact that winesses for the plaintiff in the Supreme Court were interested parties; and that the trial Judge misdirected himself as to the evidence brought to support the inference that the promissory notes were not executed on the dates which they bore.

Figgis.—The Supreme Court found that the decree had been obtained fraudulently and as the result of collusion by De Sa and Gama. Although the Government Analyst (Mr. Fox) expressed his opinion as to at least one of the promissory notes not having been executed on the date which it bore, expert evidence as a general rule need not be relied upon and should have been excluded (Lord Abinger v. Ashton, L. R. 17 Equity, at p. 373). The trial Judge's finding was based on a misconception as to the value of the expert evidence.

Schwartze.—At the time when these promissory notes were alleged to have been drawn, section 50 of the Civil Procedure Ordinance provided for pro rata distribution, and the result of the collusive judgment entered by consent between De Sa and Gama absorbed the greater portion of the funds available for distribution. The expert was definite in his opinion that the promissory note of 2nd December, 1931, had been made between June, 1932, and June, 1933, basing his opinion on chemical tests which he had made. The trial Judge indicated that he was not favourably impressed with the witnesses called by De Sa. The trial Judge was entitled to give due weight to the expert opinion expressed by $Mr.$ Fox.

Figgis, in reply.—There is no evidence that the promissory note for Sh. 8,500 was fraudulent, even if this Court holds that the promissory note for Sh. 2,000 was obtained fraudulently.

ABRAHAMS, C. J., Ag. P.-The respondent obtained a decree against one Gama and obtained an attachment upon money due to him from his employers, the National Bank of India, Ltd., on the 28th April, 1933. The appellant, De Sa, obtained a decree against Gama by consent, and on the 2nd May, 1933, obtained an attachment on the same money. The respondent brought an action to get De Sa's decree set aside, alleging that that decree was obtained by fraud. Horne, J., who tried the action, found that there had been collusion between Gama and De Sa, and that the aforesaid consent decree was the fruit of this collusion. He set aside the dcree.

It appears that the subject-matter of De Sa's action against Gama was two promissory notes, one for Sh. 2,000, the other for Sh. 8,500, and bearing date the 2nd December, 1931, and 1st September, 1932, respectively. The respondent at the trial called Mr. Fox (the Government Analyst), who said that as a result of certain chemical tests to which he subjected the signature he was satisfied that the promissory note for Sh. 2,000 must have been written subsequently to the date it bore; he was, however, unable to come to any conclusion as to the age of the signature to the other promissory note.

Apart from this scientific testimony, there was a volume of evidence which helped to bring the learned Judge to the decision he gave. Gama's bank account, when produced, showed at material times no sum on the credit side above Sh. 500; De Sa's banking account showed that no entry of the withdrawal of Sh. $2,000$ or Sh. $8,500$ appears therein; the two persons who were creditors of Gama gave evidence of discussions with Gama and De Sa which tend to show collusion between them; De Sa's account of the transactions leading up to the making of the two promissory notes is most singular, inasmuch as he alleges that these notes were given in substitution of smaller ones, though he regarded small notes as more suitable for his business; and the account of Gama as to how the note for Sh. 2,000 was given completely contradicts that of De Sa, the former stating the note was given for a loan in cash, the latter stating that it consolidated liabilities for earlier promissory notes.

Mr. Figgis, for the appellant, attacks the expert evidence. He says scientists have been proved to be wrong before this case. and he reads a passage from the judgment of Jessell, M. R., in Lord Abinaer v. Ashton, L. R. 17 Equity, at p. 373, in which various reasons are given for distrusting expert evidence in matters of opinion. But if expert evidence is to be rejected merely because scientists can be and have been wrong, or because a distinguished Judge expressed distrust of experts in matters of opinion. Courts would have to reject evidence relating to blood tests and poison tests, and many murderers would go scot free. Mr. Fox's evidence, though amounting to an opinion. was based upon chemical investigation; chemistry is not occult. and it was not suggested in cross-examination at the trial nor in argument before us that Mr. Fox did not possess the necessary scientific qualifications for his task, or did not resort to the proper tests, or drew inaccurate inferences from the results that he obtained from the tests made. I do not see any reason why Mr. Fox's evidence should have been rejected.

It is then pointed out that the learned trial Judge made an error which must have influenced his attitude towards the appellant's case. The loans passing from De Sa to Gama were said to have been made by means of cheques. These cheques were produced at the trial, and the learned Judge says that they were made out to "eash" or "bearer" and endorsed by Gama. Evidcuce was given by a bank clerk to the effect that cheques of this description do not need endorsement, and apparently the learned Judge infers in some way bad faith between the parties. But an examination of the cheques shows that the learned Judge has somehow misled himself, seeing that most of the chequest are "order cheques" and therefore needed endorsement. Mr. Figgis strenuously argues that this error, which occurs twice in the judgment, was a predominant factor in the decision, and even led the learned Judge to form an unfavourable impression of the demeanour of both Gama and De Sa. But on an examination of the judgment I am of the opinion that these cheques do not loom very large in the case, and that if they are eliminated much remains on which the learned Judge could have rejected the defence.

It is also said that the inconsistency of the evidence of Gama with that of De Sa is indicative of good faith. If they had colluded, says Mr. Figgis, there would have been uniformity of evidence. Probably every judge has had occasion at some time or other to regard discrepancies as showing veracity, and to regard uniformity as showing fabrication, but it depends upon the nature of the discrepancies and the uniformity. If two people

allege that they made a journey together from Kampala to Nairobi, and they differ on such details as the time the train stopped at Eldoret, what they had for lunch and dinner, and whether it rained on the journey and where, it would be more reasonable to argue a difference in memory than that the journey was never taken. But if one says they made the whole of the journey by rail, and the other says they went to Entebbe by car and thence by air to Nairobi, it would be more reasonable to argue that the journey never took place than that one or both suffered from a defective memory. Similarly, here: De Sa says the promissory note for Sh. 2,000 consolidated certain prior transactions. Gama says it was given for a loan in cash; notes, in fact. A discrepancy on this fundamental matter can hardly be due to a failure of memory, and it is a reasonable inference that no consideration passed with the promissory note.

On a consideration of the whole of the evidence, I am of the opinion that the learned Judge came to a correct finding, to say the least of it, and I would dismiss the appeal with costs.

SIR JOSEPH SHERIDAN, C. J.—This is an appeal from a judgment of the Supreme Court of Kenya, ordering that a decree should be set aside on the ground of fraud. The decree was passed in Civil Case 106/33, John Cancia De Sa (the present appellant) v. P. S. Gama, on 29th April, 1933; it was a consent decree for Sh. 12,166, principal with interest and costs; the cause of action was in respect of two promissory notes. At the conclusion of the plaintiff's case, counsel for the defendant-appellant submitted that there was no case to answer, and the learned Judge ruled, "there is a case to answer to the extent that the decree is affected if one note is bad." I agree with this ruling, which is mainly based on the evidence of the Government Analyst that from his examination he was prepared to say that the signature on one of the notes could not have been made so long ago as 2nd December, 1931; in fact, that it was made not earlier than June, 1932. The effect of this evidence on the facts of the case is to establish that the note for Sh. 2,000 exhibited in Case 106/33 was tainted with fraud. The remainder of the evidence, I find. supports rather than negatives the prima facie case of fraud. And there is the fact that the learned Judge was not impressed with the demeanour of the defendants. I see no reason for differing from the conclusion arrived at, but on the contrary consider it highly probable that I would have reached the same conclusion had I tried the case. I would dismiss the appeal with costs.

LUCIE-SMITH, Ag. C. J.—I agree with the judgment of the President. Appeal dismissed with costs.