HIGH COURT, SUNYANI
Date: 7 NOVEMBER 1973
OSEI-HWERE J
CASES REFERRED TO
(1) Storey v. Storey [1961] P. 63; [1960] 3 W.L.R. 653; [1960] 3 All E.R. 279; 124 J.P. 485; 104 S.J. 852, C.A.
(2) Alexander v. Rayson [1936] 1 K.B. 169; 105 L.J.K.B. 148; 154 L.T. 205; 52 T.L.R. 131; 80 S.J. 15, C.A.
(3) Laurie v. Raglan Building Co., Ltd. [1942] 1 K.B. 152; [1941] 3 All E.R. 332; 111 L.J.K.B. 292; 166 L.T. 63; 86 S.J. 69, C.A.
(4) Yuill v. Yuill [1945] P. 15; [1945] 1 All E.R. 183; 114 L.J.P. 1; 172 L.T. 114; 61 T.L.R. 176; 89 S.J. 106, C.A.
(5) Muller & Co.’s Algemeene v. Ebbw Vale Steel, Iron and Coal Co., Ltd. [1936] 2 All E.R. 1363; 155 L.T. 354; 52 T.L.R. 655; 80 S.J. 722.
(6) Young v. Rank [1950] 2 K.B. 510; [1950] 2 All E.R. 166; 66 T.L.R. (Pt. 2) 231; 94 S.J. 437.
(7) Khoury v. Richter, High Court, 8 December 1958, unreported.
(8) Majolagbe v. Larbi [1959] G.L.R. 190.
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(9) R. v. Turner (1816) 5 M. & S. 206; 105 E.R. 1026.
(10) Sheffield Corporation v. Barclay [1905] A.C. 392; 74 L.J.K.B. 747; 93 L.T. 83; 69 J.P. 385; 54 W.R. 49; 21 T.L.R. 642; 49 S.J. 617, H.L.
(11) Dering v. Winchelsea (Earl) (1787) 1 Cox Eq.Cas. 318; 2 Bos. & P. 270; 29 E.R. 1184.
NATURE OF PROCEEDINGS
APPEAL against a judgment of a district court wherein the trial magistrate overruled a submission of no
case by the defendant and entered judgment for the plaintiff s claim for an indemnity. The facts are
sufficiently set out in the judgment.
COUNSEL
Takyi for the appellant.
Ohene-Anobah for the respondents.
JUDGMENT OF OSEI-HWERE J
The facts giving rise to this appeal afford interesting reading. The plaintiffs and the defendant jointly raised a loan of 03,000.00 for which each party mortgaged his cocoa farm to the creditor. It is alleged from the affidavit supporting the plaintiffs’ application to put the case on the undefended list that the parties shared the loan equally and that they were jointly liable for its repayment. The plaintiffs contend further in the said affidavit that both of them made a total contribution of 02,800.00 in repayment of the loan whilst the defendant paid only 0120.00. They say, therefore, that they had paid “to the use of the defendant 0800.00 upon total payment of the sum of 02,920.00 that was accepted by the mortgagee in full satisfaction of the loan and for redemption of the properties mortgaged to the creditor to secure repayment of the loan.” The plaintiffs, therefore, sued the defendant claiming that they be indemnified in the sum of 0800.00. In his affidavit for leave to defend, the defendant, whilst admitting the loan, averred that at the time they took the loan he handed over his cocoa farms to the plaintiffs to pluck and to use the proceeds to defray his portion of the loan and, even though they had not gone into accounts, he believed that his debt had been fully paid out of the proceeds of the said sale. He also stated in his affidavit that he would seek the leave of the court to demand accounts at the hearing.
At the trial of the suit before Mr. J. B. K. Yemidi at the District Court Grade I, Sunyani, neither plaintiff testified but they chose to close their case on the evidence of the plaintiffs’ first witness, their common creditor, and the plaintiffs’ second witness, the cocoa caretaker to the plaintiffs’ first witness. It turned out from the evidence of the plaintiffs’ first witness that both plaintiffs jointly paid physical cash of 01,770.00 and that after the plaintiffs had rendered some service to her, the first plaintiffs’ witness, she asked them to pay further physical cash of 0400.00 in full satisfaction of the alleged balance of 01,110.00. It was clear, therefore that if the plaintiffs’ first witness’s evidence was accepted then it meant that the plaintiffs had paid altogether physical cash of 02,170.00
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and the alleged outstanding balance of 0710.00 commuted by their labour service rendered on behalf of the plaintiffs’ first witness. The claim, accordingly, represents 090.00 being the actual physical cash paid on the defendant’s behalf and 0710.00 being the amount commuted by their labour.
After the plaintiffs had closed their case on these two witnesses, counsel for the defendant made a submission of no case. The trial magistrate proceeded and gave his judgment wherein he overruled the submission of no case and entered judgment for the plaintiffs in the sum of 0800.00 and 0100.00 costs. It is against this judgment that the defendant has appealed and has urged as his grounds the following:
“(1) The trial magistrate was wrong in holding that the plaintiffs had proved their case.
(2) The judgment was unsatisfactory and one-sided because the trial magistrate failed to take evidence from the defendant in order to evaluate and assess the evidence on both sides as a whole.
(3) The trial magistrate should have dismissed the plaintiffs’ claim in view of the conflicts in the evidence on record with particular reference to the evidence of the plaintiffs’ first witness and the plaintiffs’ second witness.
(4) The trial magistrate erred in failing to give the defendant opportunity to put up his defence.”
I propose to deal first with grounds two and four together. These two grounds pose, in bold relief, an important point in procedure as to the step a court of first instance is to take in the conduct of the proceedings where, in a civil case, a submission of no case has been made. Would such a submission, particularly, disentitle the defendant from calling evidence where he has been overruled? There are two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff s evidence at its face value, no case has been established in law and in the other case that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged: see Storey v. Storey
[1960] 3 All E.R. 279 at p. 282, C.A. This distinction, as will be seen hereafter, is important because it is upon the nature of the submission that an appellate court will decide whether or not it should send the case back for re-trial.
It appears to be a well-recognised general rule of practice that if at the end of the plaintiff s case the defendant’s counsel submits that there is no case to answer he should be asked by the judge (or magistrate), particularly in negligence cases, to state definitely whether he intends to call evidence on a ruling that there is a case to answer, or if he declines to make any statement at all on the point, the judge (or magistrate)
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should proceed to hear all the evidence before deciding the issue: see Alexander v. Rayson [1936] 1 K.B. 169, C.A. and Laurie v. Raglan Building Co., Ltd. [1941] 3 All E.R. 332, C.A. In other words, the defendant’s counsel will not ordinarily be allowed to submit no case unless he tells the judge that he intends to rely on the submission alone and call no evidence. If the judge (or magistrate) overruled the submission, judgment will then be entered for the plaintiff: see Odgers on Pleading and Practice (19th ed.) at p. 304. This election either to call or not to call evidence is of procedural importance. It was held in Yuill v. Yuill [1945] 1 All E.R. 183, C.A. that it does not mean that counsel by submitting no case ipso facto loses his right to call evidence if his submission fails but that he only loses that right if he definitely elects to call no evidence.
It has been pointed out in Yuill v. Yuill (supra) per Lord Greene M.R. at p. 185, C.A. that the practice which has been laid down amounts to no more than a direction to the judge to put counsel who desires to make a submission of no case to his election and to refuse to rule unless counsel elects to call no evidence. Consequently, if through oversight or misapprehension as to the nature of counsel’s argument, the judge does not put counsel to his election, and counsel does not either expressly or impliedly in fact elect, counsel will be entitled to call his evidence just as much as if he had never made the submission. The above rule that it is only when counsel has expressly, or impliedly, elected not to call evidence that he will be allowed to make a submission of no case seems not to be an inflexible rule because in Muller & Co.’s Algemeene v. Ebbw Vale Steel, Iron and Coal Co., Ltd. [1936] 2 All E.R. 1363 at pp. 1365—1366, it was treated by Branson J. (sitting in the King’s Bench Division) as discretionary and he said that if it is likely to save the litigants expense, time and trouble, the judge should allow the defendant to make his submission unfettered by the condition that he should call no further evidence. It has to be noted here that in a civil action tried by a jury the obligation to put counsel to his election is entirely discretionary: see Young v. Rank [1950] 2 K.B. 510.
As mentioned before, there are two sets of circumstances under which a defendant may submit no case. Where there is a submission that no case has been established in law the defendant will be bound by his election and there can be no new trial ordered where the ruling is upset on appeal. Where the trial court, however, is invited to dismiss the case because of the unsatisfactory or unreliable nature of the evidence this rule does not, of necessity apply. In some cases the appellate court may well be in a position to decide the case without sending it back, but in others it may find itself unable to come to a just conclusion on the findings of the court below. In which case the only course to be adopted in the interests of justice is to order a new trial, even if the defendant has elected to stand on his submission. At such new trial the defendant is not bound by his election, and so may give evidence: see Storey v. Storey [1960] 3 All E.R. 279, C.A.
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It is abundantly clear, therefore, that the trial magistrate was entirely wrong when, by his judgment on the submission of no case, he denied to the defendant his right to call evidence where he had not been put to his election. Again the trial magistrate erred because the defendant had asked by way of counterclaim, in his affidavit disclosing his defence, for an order of accounts. He was precluded by that judgment from pursuing his counterclaim. The failure to put the defendant to his election alone is sufficient to upset the judgment. It now remains for me to consider whether the submission which was based on the unsatisfactory or unreliable nature of the evidence led on behalf of the plaintiffs was well made out. The evidence led by the plaintiffs’ first and second witnesses is so remarkably unsatisfactory and unreliable that I find no justification whatsoever that merely because the plaintiffs’ first witness had thus spoken the trial magistrate should accept her evidence and find for the plaintiffs. Again the trial magistrate fell woefully in error when he considered the issue of the burden of proof in the case. This is the decisive portion of the judgment:
“According to the creditor, the defendant only paid 0120.00. She did not say the defendant paid more than 0120.00. She said she could not trace all the receipts she issued to the parties. The creditor produced in all five receipts she issued to the defendant. The total amount covered by the five receipts was 068.60. If the defendant paid more than 0120.00 as alleged by his counsel, it is for the defendant to establish that he paid more than 0120.00. It is enough for the plaintiffs to say that the defendant only paid 0120.00. The onus is on the defendant to prove that he paid more than 0120.00.
…In the absence of any explanation coming from the defence, I am of the opinion that the plaintiffs have established their claim.”
It is well known that the legal or persuasive burden of proof is the burden borne by the party who will lose the issue unless he satisfies the tribunal of fact to the appropriate degree of conviction. As the joint loan of 03,000.00 and the defendant’s liability to pay 01,000.00 as his share are not in controversy the persuasive issue before the court is “did the defendant pay only 0120.00 of his share whereby he became liable to pay the balance of 0800.00 (to be more precise 0880.00)?” The plaintiffs obviously would lose the case if this proposition on which the parties were at issue was not made. It was their duty then to have additionally discharged the evidential burden, i.e. that burden of producing sufficient evidence to justify a finding in their favour. The plaintiffs’ reliance on the bare evidence of the plaintiffs’ first witness and the trial magistrate’s acceptance of it, that the defendant paid only 0120.00 clearly offended the well-known principle of Khoury v. Richter, High Court, 8 December 1958, unreported as explained in Majolagbe v. Larbi [1959] G.L.R. 190 on what constitutes proof in law. According to Khoury v. Richter quoted by Ollennu J. (as he then was) in [1959] G.L.R. 190 at p. 192:
“Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive
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way, e.g. by producing documents … and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be statisfied that what he avers is true.”
Even though the plaintiffs’ first witness produced some receipts she issued to the defendant to support her claim that only 0120.00 had been paid to her by the defendant the trial magistrate found that these receipts covered only 068.60. In spite of the insufficiency of the receipts to support the averment, the trial magistrate held that it was enough for the plaintiffs to say that the defendant paid 0120.00 only.
The trial magistrate, again, palpably erred in ruling that the onus was on the defendant to prove that he paid more than 0120.00. This ruling amounted to calling on the defendant to prove the negative because here the plaintiff was saying that the amount paid was 0120.00 whilst the defendant was saying that it was not 0120.00. In R. v. Turner (1816) 5 M. & S. 206, Bayley J. at p. 211 laid down the doctrine that:
“if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative is to prove it, and not he who avers the negative.”
In this suit the evidence clearly showed that the plaintiffs’ first witness took possession of the defendant’s cocoa farm so that she could reimburse herself out of the proceeds of the cocoa beans sold. The plaintiffs’ first witness in turn, engaged the plaintiffs’ second witness as the caretaker. So that whether the proceeds of sale of the cocoa from the defendant’s farm for her reimbursement amounted to 0120.00 was within the peculiar knowledge of the plaintiffs’ first witness and not of the defendant. The plaintiffs who ranked the plaintiffs’ first witness to their side ought to have sufficiently discharged that burden.
An impression as to the credibility of a party’s case ought not to be adopted by a trial court without testing it against the whole of the evidence of the witnesses called by the party. It is open to an appellate court to find that the conclusion of a trial court’s finding of the case for a party was ill-founded. The crucial issue for consideration in determine whether the defendant’s cocoa farm could have yielded only 0120.00, in the absence of all the receipts which the plaintiffs’ first witness ought to have produced, was the period she was in possession of the farm. According to her she was in possession for only two years whilst the plaintiffs’ second witness said he was caretaker and plucked the farm for the plaintiffs’ first witness for six years. This startling divergence in the evidence of the plaintiffs’ witnesses should alone have been sufficient to debunk the plaintiffs’ claim. It is quite plain, from the above, that the trial magistrate’s judgment in favour of the plaintiffs, upon counsel’s submission of
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no case in view of the unsatisfactory and unreliable nature of the evidence, was wrong and it should be set aside.
As noted before 0710.00 out of the 0800.00 claimed represents the money value of the plaintiffs’ labour expended which, by their writ of summons, they claim from the defendant by way of indemnity. The claim, as set out, would have been passed over were it not drafted by a legal hand. An indemnity arises ex contractu and it is a contract whereby one party agrees to save the other from loss. If there is any foundation to the plaintiffs’ claim at all then it should be by way of the right to contribution and not indemnity. A right to contribution arises whenever a person, who owes with another a duty to a third party and is liable with that other to a common demand, discharges more than his proportionate share of that duty: see Sheffield Corporation v. Barclay [1905] A.C. 392, H.L. Accordingly, joint and several debtors have a quasi-contractual right of contribution among themselves; that is to say, if one has paid more than his share of the debt, he can recover the excess from the others in equal shares. But the question that poses itself here is whether the court is entitled to adjust the incidence of the burden placed on the plaintiffs where, unknown to the defendant, they have expended their labour in discharging the defendant’s share of their common obligation? The right to contribution has been founded upon the broad principles of equity as recognised ever since the decision of the Exchequer Court in Dering v. Winchelsea (Earl) (1787) 1 Cox Eq.Cas. 318, and it seems to me that in order to enforce the right to contribution the court must satisfy itself that the payment made by the plaintiffs to the common creditor must be real and not capricious or arbitrary. In the absence of any agreement between the parties the plaintiffs cannot set their own money value on the labour they expended and call on the defendant to pay for it. It is for all the above reasons that I hold that the appeal should be allowed. I accordingly set aside the judgment and costs of the court below and, in place thereof, I dismiss the plaintiffs’ claim with 080.00 costs to cover his costs here and in the court below.
DECISION
Appeal allowed.
S. Y. B.-B.
