Division: IN THE SUPREME COURT
Date: 18 MAY 1964
Before: SARKODEE-ADOO CJ, OLLENNU AND APALOO JJSC
JUDGMENT OF SARKODEE-ADOO CJ
This is an appeal from the judgment of Acolatse J., as he then was, dated 10 December 1962, in an interpleader suit in which certain moveable properties were seized in execution by the deputy sheriff ‘s officer for sale to satisfy a decree in favour of the plaintiffs-judgment-creditors (hereinafter referred to as the defendants) against the defendants-judgment-debtors, a building company.
The claimant (hereinafter referred to as the plaintiff) laid claim to the properties, and upon the matter coming up for hearing, the court ordered pleadings. The plaintiff by her statement of claim averred in paragraph (3) thus:
“The defendants-judgment-debtors have no interests whatsoever in these properties but were merely employed by the claimant to erect her building with materials supplied by her.”
The defendants in their statement of defence pleaded in paragraphs (1) and (2) in the manner following:
“(1) That the defendants-judgment-debtors were a well-known building contracting firm which employed their own concrete mixing machine for the Abetifi building operation and which concrete mixer was included in the articles seized.
(2) That the other articles seized were purchased by the representatives of the defendants-
judgment-debtors and not by the claimant as alleged.”
The issue settled for trial was:
“whether or not the articles seized under process of the court in satisfaction of the judgment debt and against the defendants-judgment-debtors are the property of the claimant.”
The plaintiff’s evidence and that of her only witness (her husband) in support of her claim, inter alia, was that workmen were engaged to build the house and further that the defendants- judgment-debtors were not the builders of the house; Shamoon, a director of the defendant company supplied a foreman to supervise the work and the foreman was paid directly by the plaintiff’s husband.
In my opinion the plaintiff ought not to have been allowed by the learned trial judge to make a case which was contrary to her pleadings.
Apart from the oral evidence, the documentary evidence in support of the claim were: (a) house plan (exhibit A) and (b) waybills (exhibits 1-D5). According to the trial judge’s notes exhibits B1 and B2 although objected to, were accepted for what they are worth. Most of these waybills relate to alleged purchases after the attachment and seizure which took place some time before 20 June 1962, and therefore are irrelevant and strictly speaking, inadmissible. Waybills, unlike receipts, are of no evidential value as to alleged purchase and in no way support the claim.
Further than the evidence above-mentioned the plaintiff did not call the foreman, the owner of the private lorry No. AG 8392 which carted the materials to Abetifi nor the driver, one Kwame Nti; and none of the workmen alleged to have been employed by the plaintiff’s husband on the construction of the house was called to give evidence in support of the claim.
The defendants’ witness, who is an ex-employee of the defendants-judgment-debtors was able to prove the ownership of the two concrete mixers in the defendants-judgment-debtors; and this proof is conclusively supported by exhibits 2A and 2B.
The learned trial judge referring to this witness in the course of the judgment from which this appeal had been brought observed as follows:
“I am not satisfied with the evidence given on behalf of the plaintiffs judgment-creditors. I form the opinion that the witness was biased and could not be taken seriously. I found him unreliable and his evidence was based on assumptions and not from any official documents or authority.”
With respect, in my view, these remarks were unjustified. On the whole of the evidence it is abundantly clear that the evidence adduced in support of the claim did not reach the standard of proof required.
It is settled principle of law that justice must not only be done, but it must manifestly and undoubtedly be seen to be done. In the result, the judgment of the court below in favour of the plaintiff in her claim is set aside in toto and in lieu thereof a judgment dismissing the claim and
entering judgment for the defendants thereon is substituted therefor. It is ordered that the properties should be duly seized and sold to satisfy the judgment debt and costs obtained against the defendants-judgment-debtors. The appellants are awarded their costs in this court fixed at £53 9s. 6d. They will also have their costs in the court below assessed at 75 guineas. Any costs paid by the appellants in pursuance of any order as to the costs in the court below should be refunded to them.
JUDGMENT OF OLLENNU J.S.C.
I agree.
JUDGMENT OF APALOO J.S.C.
I have had the advantage of reading beforehand, the judgment just read by the learned Chief Justice and in which my brother Ollennu has concurred. I have the misfortune of reaching a conclusion diametrically opposite to the one reached by the learned Chief Justice. Tried as I have, I have not succeeded in persuading myself that this court, applying the principles which are well known, is entitled to reverse what to my mind, is a clear finding of fact on the ground that “the evidence adduced in support of the claim did not reach the standard of proof required.”
Before setting out the reasons which obliged me to dissent, it is, I think, necessary to state the facts which in this case, are as simple as one could wish. Some time in 1962, Messrs. R. T. Briscoe brought an action against a firm called the Neoteric Building Company (hereinafter called the judgment-debtors) and obtained judgment. That judgment was apparently unsatisfied. Accordingly, Messrs. Briscoe Ltd. applied to the sheriff for a writ of fi. fa. to attach the properties of the judgment-debtors in satisfaction of that judgment. To this application, the sheriff acceded and issued a writ of fi. fa. This was in due course executed and on 9 June 1962, the goods which form the subject-matter of the interpleader proceedings were seized by the sheriff. These goods were seized at the claimant’s building site at Abetifi and were indisputably in her possession.
Mrs. Preko (the claimant) claimed that the goods were her own properties and were as such, not liable to attachment. Accordingly, the sheriff took the step which Order 57, r. 16 (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954,1 obliged him to take. He served on the judgment-creditors the prescribed notice calling upon them to admit or deny the title of the claimant. The former acting by their solicitor disputed the claimant’s title. Accordingly, the sheriff issued an interpleader summons and invited both sides to appear before the court and state the nature of their respective claims. This summons was duly obeyed and on 10 October 1962, both parties appeared before the court. The record is silent as to whether or not the parties then stated to the court what their respective claims were. The learned judge however
felt that the issue must be elaborated in pleadings which he then proceeded to order. He directed that the claimant shall be plaintiff and the judgment-creditors defendants. The natural sequel of this order, was to throw the burden of establishing her title on the claimant. For the reason which I shall hereafter give. I feel grave doubt whether the order directing the claimant to be the plaintiff was right.
Pleadings were in due course filed and thereafter the only issue settled for determination was: “whether or not the articles seized under the process of the court in satisfaction of a judgment debt and against the defendants-judgment-debtors are the property of the claimant.” The trial opened before Acolatse J. (as he then was) on 7 December 1962. On that day, both the claimant and her husband gave evidence. It emerged clearly enough from their evidence that the goods were seized at the claimant’s building site at Abetifi. The claimant said the house was being erected for her by her husband who bought the articles seized. Her husband’s evidence was to the same effect. With regard to the concrete mixers, the claimant’s husband said he bought them second-hand from the judgment-debtors. With regard to the other articles seized, namely, asbestos pipe tubes, asbestos sheets and brass pipe tubes, the claimant’s husband testified that he gave money to Mr. Shamoon who was the managing partner of the judgment-debtors’ firm and he bought the articles for him. At the time he gave evidence, he said he could not trace the receipts of some of the articles but produced in evidence some waybills of some of the other materials he said he purchased for the building. Most of these purchases were made after the seizure with the result that the waybills have very little probative value. The judgment-creditors for their part, put in the witness-box, a Mr. Johnson Falope who said he used to be the buyer of materials for the judgment-debtors and asserted that the articles seized were the properties of the judgment-debtors. He said in evidence that the judgment-debtors bought from Messrs. Paterson Simmons two concrete mixers in 1959 and 1960. He said the sales were made to the firm on credit and he produced certified true copies of two invoices which were marked exhibits 2B.
It is to be noted that this witness did not attempt to connect these invoices with the concrete mixers seized nor is there any other evidence to show that the concrete mixers described in the invoices exhibits 2A and 2B are the concrete mixers seized. This fact is not however of great importance, since the claimant’s husband admitted that he purchased the concrete mixers attached from the defendants-judgment-debtors. In cross-examination this witness made a number of wholly irreconcilable statements. He at first said as the buyer of materials for the firm, it was part of his duty to send building materials to the sites. Yet in the very next breath he said “I was not the one responsible for sending materials out of the company yard to Abetifi or any site.” He made a number of other inconsistent statements which I do not find necessary to recite.
When evidence concluded and after counsel addressed the court, the learned judge proceeded to deliver judgment. The learned judge must have felt that the case was much too simple to reserve judgment. He took a plainly adverse view of the judgment-creditors’ witness Falope and was rather outspoken about him. He said he was biased and was unreliable and that he could not be taken seriously. On the contrary, he felt satisfied of the claimant’s evidence and proceeded to find that:
“. . . the articles seized were purchased by the claimant’s husband in connection with the building at Abetifi and that the claimant was in possession of the articles seized under the process for and on behalf of herself and not for the defendants-judgment-debtors.”
Having so found, he ordered that the properties be released from attachment. That this is an
extraordinarily simple finding of fact, cannot, in my opinion, be open to doubt.
The judgment-creditors claiming to be aggrieved by that judgment, appeal to this court on a number of grounds. The first ground of appeal argued before us was what appears in the notice of additional grounds as ground 3. It reads as follows:
“That the claimant having by paragraph 3 of her pleadings admitted employing the
defendants-judgment-debtors to erect her building for her with materials supplied by her the trial judge erred in law in accepting her evidence which was contrary to her pleadings and which she was estopped from giving.”
On this ground, counsel for the appellants referred us to the claimant’s evidence in which she said “The judgment-debtors had nothing to do with the construction of the building.” This is, without doubt, in conflict with the averment in paragraph (3) of the statement of claim. But it seems to me that this conflict arose because although on the evidence, the firm qua firm did not erect the building, it was supervised by a foreman provided by them. In any event, this matter is merely collateral to the only issue which the court was asked to determine, namely, whether or not the goods seized belonged to the claimant or judgment-debtors. That issue was decided, in my opinion, as clearly as anything can be decided. For my part, I cannot think that the success or failure of this appeal can depend upon this divergence between pleading and evidence. I am consoled in this by the fact that the majority of this court, with whose conclusion I venture to differ, do not regard this conflict as the crucial factor in the determination of this
appeal. Indeed, they based their allowance of this appeal on another ground, namely, insufficiency of proof. I think there is nothing in this ground of appeal and it must fail.
The next ground of appeal argued was “The trial judge erred in law when he allowed himself to be influenced by waybills as if they were receipts in support of purchases.” On this, counsel referred to the Oxford Dictionary meaning of waybill and receipt and submitted that the former has no evidential value. In my opinion, there is nothing in the judgment which lends the slightest colour to the suggestion that the learned trial judge thought that a waybill and a receipt had the same probative force. Counsel for the appellants seemed to imply from his argument that the claimant could not establish her title to these goods without the production of receipts. I am aware of no rule of law which lays down that if a man bought chattels and was in possession of them, he could not sustain his title in a court of law by truthful oral evidence
without the production of receipt. If I should not be thought disrespectful for saying so, I think this ground of appeal is entirely without merit.
It was next contended that “the trial judge misdirected himself in holding that the witness for the plaintiffs-judgment-creditors was biased and could not be taken seriously.” I did not myself see Falope give evidence and I do not find it possible from a mere perusal of the printed record to say whether or not he gave evidence in a biased manner. For my part, I should have thought it was a legitimate observation for a trial judge who saw the witness to make. It is possible the learned judge used too strong a language on this witness, but I find it impossible to say that that amounted to anything like misdirection. The learned judge also thought the witness could not be taken seriously. In view of the obvious contradictions in his evidence, I think the judge was entitled to take that view of him. I do not think I need say any more on this ground of appeal beyond stating that it must fail.
The last ground of appeal which counsel sought to argue and which he abandoned, I thought with good grace, was “that the trial judge erred in law when he held that the claimant was in possession of the articles claimed.” There can be no doubt that at the date when these goods were siezed at the building site at Abetifi, they were in possession of the claimant. She said in evidence “I was in possession on behalf of myself and not the judgment-debtors.” The trial judge found this to be so. The position therefore is that the claimant was entitled to remain in possession unless and until the judgment-creditors who were asserting title in the judgment-debtors, proved a better title. This, I think, accords with the principle that a person in possession is deemed to be the owner against the whole world save the true owner. It follows
therefore that in my judgment, the learned judge ought to have ordered the judgment-creditors to be plaintiffs and the claimant the defendant. This would have obliged the judgment-creditors to prove a better title to the goods than the claimant in possession, if they were to sustain their claim. This indeed is the view which commended itself to the English Court of Appeal in De La Rue v. Hernu.2 In that case, a wife deposited certain household goods with a warehouseman. Her husband claiming to be the owner of those goods, issued a writ against the warehouseman. The latter caused to issue interpleader proceedings to determine as between husband and wife who was the true owner. When the question came to be settled who was to be made plaintiff and who defendant, the Master decided that as the goods were deposited by the wife, the husband should be made plaintiff to prove his title. On appeal, this order was held to be right
and Greer L.J. said3:
“Quite properly the learned Master decided that the claimant ought to be the husband, because the deposit with the warehousemen had been made by the wife, and she was in the position of a person in possession, having nine-tenths of the law. The other tenth appeared to enable the husband to make out his claim.”
That seems to me, if I may respectfully say so, good sense.
This brings me to the ground on which the majority of this court felt that the trial judge should be reversed. That is, as I have said “the evidence adduced in support of the claim did not reach the standard of proof required.” Proof as I understand it, is the conviction that evidence of certain facts carry in the mind of the Judge or jury. It is not pre-ordained and has no objective existence, capable of discovery either by logic or analysis. I think what suffices in each case must vary depending on the nature of the case, and the person to whom the evidence is addressed. I believe that is the reason behind the golden rule, that an appeal court should not disturb a finding of fact made by a trial court if there be evidence to support it. In any event, the authorities seem to show that where a trial court came to a definite conclusion on conflicting evidence, no question of the onus of proof properly arises on appeal. Thus in the Privy Council case of Robins v. National Trust Company,4 Viscount Dunedin said:
“Now, in conducting any inquiry, the determining tribunal, be it judge or jury, will often find that the onus is sometimes on the side of one contending party, sometimes on the side of the other, or as it is often expressed, that in certain circumstances the onus shifts. But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered.”
Again, in Watt v. Thomas5 a husband brought an action against his wife for divorce on the ground of cruelty. This petition was decided against him. He appealed to the Scottish Court of Appeal which reversed the trial court mainly on the ground that they took a different view of the facts and the inferences properly to be drawn from them. The House of Lords to which the wife further appealed, reversed the Court of Appeal and Lord Thankerton who delivered the leading judgment of the House inter alia said6:
“The only suggestion by Lord Mackay of the Lord Ordinary having misdirected himself was as to onus of proof; but the Lord Ordinary, quite rightly, makes no reference to onus of proof, for, as has often been pointed out, no question of burden of proof as a determining factor of the case arises on a concluded proof, except in so far as the court is ultimately unable to come to a definite conclusion on the evidence, or some part of it, and the question will arise as to which party has to suffer thereby. The Lord Ordinary came to a definite conclusion on the evidence, and no question of onus did, or could, arise.”
Similarly, in this case, the learned trial judge arrived at a definite conclusion and I for my part, do not feel justified in reversing him on the sole ground that the evidence failed to reach an unspecified standard of proof.
That being so, the question which arises is: What is the duty of this appellate court towards a finding of fact made by a trial judge? That duty has consistently been laid down by a great many cases and is now trite learning. In the case of Reindorf v. Amadu7 in which as here, this court failed to reach an unanimous conclusion, Korsah C.J. (as he then was) delivering the majority judgment of the court referred to the following English cases in which the duty was laid down, viz. Colonial Securities Trust Company v. Massey8; Smith v. Land and House Property Corporation9; Savage v. Asan.10 Those cases decide that where a case tried by a judge without a jury comes to the Court of Appeal, the presumption is that the decision of the court below on the facts was right and that that presumption must be displaced by the appellant. They further establish that if there be evidence if, which believed, entitles the trial judge to reach the conclusion he did, the Court of Appeal must not disturb that finding because it would, if it had been the trial court, have reached a different conclusion. The cases of Kojo II v. Bonsie,11 Noujaim v. Aly,12 Keh v. Kofi13 all echoed the same principles. In Clarke v. Edinburgh and District Tramways Company Limited14 Lord Shaw put the matter in picturesque language. He said:
“witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. . . . In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I—who sit here without those advantages, sometimes broad and some times subtle, which are the privilege of the Judge who heard and tried the case—in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.”
That seems to me to be the beaten track of the decisions and I, for my part, will loyally follow it. I think it is impossible to tread too faithfully in footsteps so wisely placed. Accordingly, I ask myself: is there evidence before the trial judge which, if believed, entitles him to reach the conclusion that the goods seized were the property of the claimant? I answer that question positively in the affirmative. If this matter had rested with me, there can, by now, be no doubt as to the fate of this appeal. But as my brothers think otherwise, I must be wrong.
Be it as it may, I would, for my own part, dismiss this appeal with costs.
DECISION
Appeal allowed.
N. A. Y.
