Saif v Sholan (Civil Appeal No. 31 of 1955) [1955] EACA 301 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY, (Vice-President) and PAGET BOURKE, Acting Justice of Appeal

## ABDUL HAMEED SAIF, Appellant (Original Defendant)

## ALI MOHAMMED SHOLAN, Respondent (Original Plaintiff) Civil Appeal No. 31 of 1955

(Appeal from the decision of H. M. Supreme Court of Aden, Campbell, J.) Finding of fact—Reversal by appellate court—Principles.

The trial Judge rested his acceptance of the defendant's story on his opinion of the credibility of his witnesses, based on their demeanour in the witness-box and on the probabilities of the case. There were, however, two indisputable factors which the Court of Appeal considered should have been taken into account and weighed against the oral testimony, and which the trial Judge did not so take into consideration.

Held (11-5-55).—An appellate court is not bound to follow a trial Judge's findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or, (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.

Appellant's appeal dismissed. Respondent's cross-appeal allowed. Case referred to: Khoo Sit Hoh v. Lim Thean Tong (1912) A. C. 323.

Chanan Singh for appellant.

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S. G. Amin for respondent.

JUDGMENT (prepared by Worley (Vice-President)).—The appellant in this matter was the defendant in proceedings brought by the present respondent in the Supreme Court of Aden; it will be convenient to refer to them respectively as licensee and licensor. The licensor brought the proceedings for recovery of possession of certain premises, which the licensee occupied and in which he ran the business of a restaurant, and for recovery of certain furniture used therein and specified in a list annexed to the plaint. The licensor averred that the licence was terminable at will. There were other claims for money due, but these appear to have been settled and we are not concerned with them in this appeal. The licensee in his written statement of defence did not contest the licence but averred that it was to be operative for a period of two years with an option of renewal at his instance for a further period of two years. The learned trial Judge found as a fact that the agreement between the parties was for a two years' licence, but rejected the licensee's claim to the option. The Judge also found that the licence was to become operative from 15th March, 1953. He therefore found that the licensor's suit which was filed on the 13th September, 1954, was premature and accordingly dismissed it with costs.

The licensee, although the successful defendant, then brought this appeal against (1) the finding of the learned trial Judge that his licence operated from 15th March, 1953, his case being that it did not begin to operate until 15th August, 1953, and (2) against the learned Judge's finding that these was no option for renewal. Before us Mr. Chanan Singh, who appeared for the appellant, withdrew the appeal, being of opinion that the findings of fact to which the licensee objects. can be reagitated in any subsequent proceeding.

The licensor, the unsuccessful plaintiff, had however given notice of crossappeal against the learned trial Judge's finding that the licence was for a period of two years certain, and after hearing counsel on this issue we allowed the cross-appeal. We accordingly ordered that the appeal should stand dismissed, that the cross-appeal be allowed, and the decree of the Supreme Court set aside. We directed that, in lieu thereof, a decree should be passed giving the licensor vacant possession of the suit premises on 31st July, 1955, and that the licensee should, on or before the same date, return to the licensor the furniture claimed as set out in the annexure to the plaint. We further ordered that the licensor should have his costs of the proceedings in the Supreme Court and also his costs of the appeal and cross-appeal, subject, however, to a special order that on taxation only one fee for instructions be allowed in respect of both the appeal and crossappeal. We made this special order because the issues on the appeal and crossappeal were substantially the same. We now proceed to give our reasons for allowing the cross-appeal.

The issue as to the terms and conditions of the licence was essentially one of fact and it is only on rare occasions that an appellate court will interfere with the findings of fact of a Judge sitting alone, but we were satisfied that this was a case where justice required us to do so.

The licensor's case was that the agreement between him and the licensee was a verbal one and made on or about 15th August, 1953. On 31st July, 1954, i.e. after the expiration of one year, he gaves written notice to the licensee terminating the licence with effect from 1st September, 1954. The notice (exhibit 1) stated, *inter alia*, that the licensor was giving notice and demanding delivery of the premises and furniture on the day named though he was not legally bound to do so. The licensee has never denied the receipt of this notice. He did not comply with it and in consequence these proceedings were brought, the plaint as we have said, being filed on 13th September, 1954, and the written statement of defence on 4th October, 1954. In the licensor's rejoinder he denied that there was any agreement in writing as alleged in the written statement of defence. At the trial the licensor gave evidence of the verbal agreement and denied that it had ever been reduced to writing. The licensee then gave evidence to the effect that two copies of the terms of the agreement had been written down by him in March, 1953, one copy being given to the licensor and the other copy retained by himself. He then went on to say that he had lost his copy and had asked the licensor for his copy but the latter had refused to produce it. This was presumably intended to lay a foundation for the admission of secondary evidence of the alleged document which he and his witnesses then proceeded to give. It is a matter for some surprise that the pleader who appeared for the licensor raised no objection to the admission of this secondary evidence on such a flimsy foundation; however, the evidence was admitted and taken into account by the learned trial Judge. Apart from the licensee's own self-serving statements as to the contents of the missing document there was the evidence of two witnesses, a clerk and a boy of 15, who claimed to have been in the restaurant in March, 1953, when the document was being written. They also claimed to have read a copy. of the document and to be able to remember at least some of its terms. The learned trial Judge was not unaware of the questionable quality of this evidence. He says in his judgment: "One is always suspicious of a person who is trying to prove the contents of a document which he says that he has lost or has been stolen from him, but in this case I must say that I believe him and his two witnesses to be speaking the truth. They were closely cross-examined and were quite unshaken and added several touches which impressed me with the truth of their evidence." He also went on to say that he thought it very improbable that the licensee would enter on a venture such as this with no security of tenure

whatever. He, however, did not accept fully the evidence of the licensee and his witnesses for he rejected the assertion of the licensee and the schoolboy that the written agreement contained an option for renewal.

It is evident therefore that the learned Judge rested his acceptance of the licensee's story on his opinion of the credibility of the witnesses based on their demeanour in the witness-box and also on the probabilities of the case. In observing the witnesses he had an advantage which this Court does not possess. but we are bound to observe that on the record before us there are no indications that these witnesses were closely cross-examined; as the record stands the licensee himself would appear not to have been cross-examined at all, though we think that this is probably due to an omission on the part of the learned Judge to note when the cross-examination began. The cross-examination of the two witnesses occupies only three lines of typescript in each case. However that may be, it is well settled that an appellate court is not bound necessarily to follow a trial Judge's findings of fact if it appears either (a) that he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence (*Khoo Sit Hoh v. Lim Thean Tong* (1912), A. C. Py. Co. 323 at p. 325), or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.

In the case before us there are two indisputable factors which, in our opinion, ought to have been taken into account by the learned trial Judge and weighed against the oral testimony, and which he appears to have entirely overlooked. The first of these is that no reply was sent by the licensee to the licensor's letter terminating the licence. The licensee has not condescended to say how or when he lost his copy of the alleged written agreement, but in any case if there had been in existence at any time such an agreement, it would surely have been natural for the licensee to reply immediately and indignantly that his licence had yet another twelve months to run, irrespective of the question of renewal. As it is, no mention is made of a written agreement until the defence was filed in October. The second factor is that some time towards the end of July or the beginning of August, 1954, there were negotiations between the parties which resulted in the preparation of a draft agreement (exhibit 2) which was to run for 12 months from 1st August, 1954, to 31st July, 1955, renewable by mutual consent. By this agreement the licensee would have had to pay Sh. 30 a day instead of the Sh. 20 payable under the original agreement. The licensee in his evidence said that these negotiations fell through because he wanted the agreement to be for two years certain and the licensor would only agree to one year. Mr. Amin, for the licensor, has pointed out that the learned Judge appears entirely to have failed to consider the improbability of the licensee entering into these negotiations at that time if, in truth and in fact, his original agreement had still twelve months more to run at Sh. 20 a day with the option of renewal. In fact, in the witnessbox, he swore that the option was to renew for as long as he liked.

In our view, when these two factors are taken into consideration, the probabilities weigh heavily against the truth of the evidence given by the licensee and his witnesses, and had the learned Judge not overlooked them he could scarcely have decided to accept the oral evidence which he himself very properly realized had to be approached with some suspicion. For these reasons we were of opinion that his finding of fact as to the term of the licence could not stand.

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