Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN AND MILLS-ODOI JJSC AND APALOO J
JUDGMENT OF APALOO J
This is an appeal from the judgment of the High Court, Accra, dated 11 February 1963. That judgment awarded damages in favour of the plaintiff-respondent against the defendant-appellant as a result of injuries sustained by the former in an accident which took place on the Accra-Nsawam road on 25 November 1960.
The facts of the case are fairly straightforward and are substantially free from complexity. They can be stated briefly. The plaintiff, who gave his age as 41 years, is by profession a mechanical engineer. He was also associated with a company known as Ghana Woodwork Construction Limited and was at the date material to this case, its managing director. On 25 November 1960 he was driving a Fiat saloon car which belonged to his company from Nsawam to Accra. The time was 10.30 p.m. or thereabouts. At a point between mile eight and nine, he ran into a stationary Bedford truck which was parked on the nearside of the road. Both he and his wife who was with him, sustained severe injuries. The evidence shows that his wife succumbed to these injuries. The stationary Bedford truck admittedly belonged to the defendant.
The plaintiff claimed that the defendant was negligent inasmuch as he or his servant left on the road in a manner which obstructed him, a lorry which was wholly unlighted. For this, he sought damages. The defendant controverted the allegation of negligence and for his part, put in the witness-box his watchman Ali Moshie who was without doubt an eyewitness of the accident. The pith of Moshie’s evidence was that the lorry in question developed engine trouble earlier in the day and its lighting system had failed. An attempt to repair it was unsuccessful. As the lorry had a full cargo of cocoa, the driver travelled to Nsawam and reported this fact to the defendant. Accordingly, the defendant ran him (Ali Moshie) whose normal job is that of a night watchman to the spot on the road where the damaged vehicle got stuck, for a dual purpose, namely, to watch the cocoa and keep it from the depredation of thieves and also to warn
approaching vehicles. To do this, Moshie said, he armed himself with a lantern the type of which is pumped. This would be a petromax or some such kindred lamp. This he said he put on top of the lorry about 6 p.m. after it was lit.
According to Moshie, while the lit lantern was in this position, many vehicles passed from either direction without incident. He said that about 11 p.m., a car (which turned out to be the plaintiff’s) came from Nsawam direction and violently hit the stationary lorry from the rear. This vehicle was in full speed and when it hit the lorry, it pushed it forward. Accordingly, the lamp fell off the cocoa onto the road and got broken. Moshie said he thought the driver of the car was drunk and so addressed him. When the truth of his story was disputed in cross-examination he answered thus, “It is true that at the time of the accident, there was a lantern on the lorry.”
On the issue which was joined on the facts, it seems to me that the question which the learned trial judge must eventually answer is “Was there light or not on the vehicle at the time the accident occurred?” The determination of this question would, I apprehend, involve a reasoned appreciation of the case of both sides by the learned trial judge. In this exercise, in my opinion, the case for the defendant is entitled to no less consideration than the plaintiff’s. In an effort to resolve the dispute and to determine the fact, the learned trial judge made what strikes me as a copious resume of the evidence of the plaintiff and an eye-witness Samir Eid called by him. Like the plaintiff, Eid also said there was no light of any sort on the vehicle at the time of the accident. The learned judge eventually found himself persuaded by the evidence of the plaintiff and Eid and he expressed his acceptance of it. But before doing this, he did not address his mind to the inherently credible story told by the defendant’s witness Ali Moshie. He did not recite any of the facts put forward on behalf of the defendant. He rejected en masse the whole of Ali’s evidence on the ground that Ali Moshie did not impress him as a witness of truth. He then proceeded to find, although not expressly, but by necessary implication that the vehicle had no light at the time of the accident. He held that the unlighted vehicle constituted a dangerous obstruction.
The learned judge also made other findings of negligence against the defendant which counsel for the respondent has not sought to support. For example, the judge held that the defendant was negligent in putting on the road a vehicle known to him to be defective. There was in fact no evidence to support this. He also held that the defendant was negligent in failing to provide an adequate supply of the conventional red lamps to be placed on conspicuous positions in the front and back of the vehicle. Although this may constitute a breach of statutory duty in accordance with section 45 (1) of the Road Traffic Regulations, 1957, 1 the allegation of negligence resulting from the breach of a statutory duty was not pursued at the trial nor before us.
Accordingly, the only pertinent finding of negligence is the implied finding that the lorry was unlighted at the time of the accident. Having found negligence established and holding that it was the decisive cause of the accident, the learned judge proceeded to award both general and special damages in favour of the respondent. The principles on which the award was based and its quantum have been the subject of complaint by both the appellant and respondent. But in the view which I take of this case, it is not necessary to express any concluded opinion on either complaint.
Feeling himself aggrieved, the defendant has appealed to this court on a number of grounds. The only ground which seems to me germane to this appeal and the determination of which ought to affect the result of this appeal is ground six. It is a slightly verbose ground of appeal and reads as follows: “The learned trial judge was wrong in failing to consider the whole of the evidence of the defendant’s witness, or alternatively, that the learned trial judge was wrong in rejecting the whole of the evidence of the defendant’s witness. He also failed to make a proper finding as to whether he believed the defendant’s witness that he put a white lamp on the defendant’s vehicle.”
On this ground, counsel for the appellant referred us to Ali Moshie’s evidence especially to that part of it, where he said he put a white lantern on the cocoa, and the object for doing so. Counsel points out that the learned judge nowhere adverts to this evidence in his judgment and that it is not possible to say whether he thought the light must have been put there but was insufficient in the circumstances. Accordingly, counsel submitted that the learned judge cannot have considered the defence or if he did, he cannot have done so adequately.
For the respondent, it was submitted that there was evidence by both the plaintiff and Eid that there was no light on the lorry at the time of the accident. It was said the learned judge having expressed his acceptance of that evidence, it stood to reason that the court rejected Moshie’s evidence. The trial judge, it is said, gave reasons for rejecting that evidence. That finding, counsel for the respondent submitted, was a finding of fact and that this court is precluded by authority from disturbing it.
For my part, I cannot see that the argument of the appellant’s counsel has been answered. The reason given by the learned trial judge for summarily rejecting the whole of Ali’s evidence, in my judgment, fortifies the contention of counsel for the appellant. The learned judge said Moshie’s evidence “is unreliable and I do not believe it.” Clearly not all of his evidence can be untrue. For instance, Ali’s evidence that his master ran him down from Nsawam to watch the cocoa against theft and warn approaching vehicles cannot reasonably be discredited. His further evidence that he put a lit lantern on top of the cocoa has the clearest imprint of truth, and for myself, I would require good reason for its rejection. Had the learned judge addressed his mind to that inherently credible story, I cannot see how he could have disbelieved it. It is hard to think that a man sent to watch over cocoa and give warning to approaching traffic would do this in a dark night entirely without light. If he accepted that evidence, he would be faced with a consideration of the probabilities. He may well have considered it probable that if
the lantern was put there at 6 p.m., it remained in that condition until the impact occurred. That is not an unreasonable view to take in the light of Ali’s evidence, that that lantern illuminated the area for a distance of about twelve yards and enabled vehicles to pass from either side without disaster from 6 p.m. till the time when the accident occurred. On the other hand, the learned judge may well have found reason for thinking that the state of affairs created by Ali at 6 p.m. ceased to exist at the time of the impact. Counsel for the respondent suggested as a possible reason that the fuel in the lantern may have run out. That of course is not improbable and these are the probabilities which a tribunal of fact must weigh up. It is not for this court to speculate. Had the learned judge weighed up all these matters and come to conclusion on them, his decision would be one of fact which this court, acting on familiar principles, would have felt disinclined to disturb.
The learned judge also expressed as his view that Ali Moshie must have been asleep at the material time and must have been awakened by the impact. The evidence on which that conclusion was based seems to me extremely tenuous. Neither the plaintiff nor Eid said anything which could lend the slightest colour to such conclusion. Ali Moshie himself said he saw the accident and as the driver drove into a stationary lorry, he asked him whether he was drunk. Eid admitted that he saw Moshie soon after the impact and spoke to him. He did not suggest that he was drowsy or appeared to be someone just roused from sleep. On the contrary, Eid’s evidence suggests that Moshie was quite himself as he said he helped to get the plaintiff out of the car. It was not put to Moshie in cross-examination that he was asleep and did not
witness the accident. Had the learned judge dealt adequately with Moshie’s evidence, I think he would have hesitated long before forming the view that he was asleep at the time of the impact.
Counsel for the respondent who put forward a thorough and careful argument, then referred us to the decision of this court in the suit entitled Reindorf v. Amadu,2 and invited us in effect to say that if the judgment of the trial court was in any way defective, the conclusion was nevertheless right and that we should ourselves consider the evidence as was done in the Reindorf case. In particular, counsel relied on the case of Benmax v. Austin Motor Co., Ltd.3 The case of Savage v. Adam4 and the others cited in that judgment contain no novel propositions of law and if I may so put it, are no more than a striking affirmation of the age-old principle that an appeal court should not disturb a finding of fact made by a trial court if there be evidence to support it; and the further proposition that a finding of fact made by a trial court is presumed to be right and the burden is on the appellant to displace that presumption. All these cases presuppose the fact that the finding of fact made by a trial court was arrived at after a reasoned appreciation of the case put forward by either side. The principle in these cases obviously cannot apply, where as in this case, the appellant complains with considerable justification that the finding was arrived at in complete disregard of the case put forward by one side. Accordingly, for my part, I do not find myself helped by a consideration of those cases.
With regard to counsel’s request that we should ourselves consider the evidence and arrive at our own conclusion, I for myself, do not consider it either a wise or desirable course to take on the special facts of this case. Had the learned trial judge exercised his mind on the defendant’s case and accepted it, he may well have concluded that as Moshie put a white lantern on the vehicle which illuminated the area for a distance of about twelve yards, the defendant was not negligent and that the plaintiff was the author of his own misfortune. On the other hand, he may still have come to the conclusion after a consideration of the whole case that the defendant was negligent. I think this is essentially a matter for a trial court to decide. In my judgment, it would not be right for us to attempt to form a conclusion on the rival stories by a mere perusal of the colourless, impersonal, and may well be, misleading transcript of the evidence. Accordingly, I for my part, cannot accede to counsel’s submission that we should follow the
procedure adopted in the Reindorf case. In my judgment, the right course for us to take is to remit this case to the court below for a retrial.
It was also submitted on behalf of the appellant that the learned judge was wrong in holding that the defendant’s vehicle occupied 75 per cent. of the roadway inasmuch as Eid admitted that the left wheels of the lorry were on the grass verge. Counsel for the appellant contended that that being so, an ordinary Bedford lorry cannot have taken up 75 per cent. of the roadway. There is some force in this contention but as Moshie agreed that two lorries cannot pass abreast of each other where the defendant’s vehicle stood, it mattered little if the vehicle occupied 75 per cent. or just 50 per cent. of the roadway. It in any event created an obstruction and would constitute negligence in the defendant if it was left unlighted in a dark night. Speaking for myself, I cannot see that the result of this case can depend on whether or not the
plaintiff or Eid was right in his estimate of the portion of the road occupied by the defendant’s disabled lorry.
As I have said, both the appellant and respondent found cause to complain against the principles on which the damages were awarded or reduced or the non-award of damages on specific heads. As this matter will no doubt again be debated in the High Court, no useful object would be served in pronouncing on the correctness or otherwise of the rival arguments. On this point, I think this case must go back untramelled by any observations from us.
Accordingly, I would allow the appeal and set aside the judgment appealed from. I would remit this case to the court below for a retrial.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
I have had the opportunity of reading beforehand the able judgment just read by Apaloo J. and hereby express my complete concurrence with it. I would, however, add a few observations of my own with regard to the way and manner in which the learned trial judge in his judgment expressed his crucial conclusion in respect of the main defence put forward by the defendant.
In my view, from the evidence put forward by each side in support of its case, although there emerged a subsidiary issue as to whether or not the plaintiff was guilty of contributory negligence, the cardinal or primary issue of fact which arose for determination was, without doubt, whether or not there was any light on the defendant’s stationary vehicle at the material time when the same was run into by the car driven by the plaintiff.
In respect of this issue, it will be recalled that it was pleaded on behalf of the plaintiff, as particulars of the negligence on which the claim for damages was founded, the following, i.e. “Parking lorry and trailer at night without lights.” Towards proof of that averment, firstly, the plaintiff himself in his evidence stated: “On 25 November 1960 I was driving a car No. AG. 3752 from Nsawam to Accra. At about 10.30 p.m. between mile nine and eight while driving on my left hand side I saw the lights of a vehicle approaching from the opposite direction. The driver of the said vehicle dimmed his head lights so I dimmed mine too. As I was about to pass by the on-coming vehicle I ran into a stationary vehicle on my side of the road. It was a lorry with a trailer … I did not see the vehicle before I ran into it. I did not see any light on the vehicle before I collided with it. After the accident I did not notice any lights on the said lorry and trailer … Apart from the defendant’s vehicle being on the road without lights on it, there was no one present to warn motorists of its presence on the road. There was nothing to indicate that the vehicle had been left on the road.”
Under cross-examination he gave this further evidence:
“The collision occurred because the vehicle was unlighted, and the light of my car as also that of the other on-coming vehicle had been dimmed. My vision before the impact was between ten to twelve yards. I was not blinded by any light … I did not see any lantern showing any light at all, I did not see Ali Moshie (identified) at all that night. It is possible he might have been one of the people who helped me out of my car. I was conscious but dazed.”
Secondly, the plaintiff’s principal witness to the accident testified:
“I first knew the plaintiff at the time of the accident on 25 November 1960. On that date I was driving a car proceeding towards Nsawam. At mile nine or ten I saw a vehicle approaching from the opposite direction. I dimmed my lights and the driver of the approaching car also did the same. I slowed my speed and continued. As the vehicle was about to pass by my car it ran into the rear of a stationary vehicle. I saw the stationary vehicle four or five seconds before the on-coming vehicle ran into it. After the collision I went a bit further away and turned towards Accra and switched on my headlights to enable me to see what assistance I could give. The time was between nine and ten p.m. and it was dark … The stationary lorry was a big Bedford truck
with a trailer, both of which were fully loaded with cocoa. I saw someone in Hausa garment near the lorry. As there were no parking lights on it I was furious because of the blood I had seen, so I asked the man: ‘Where is the driver,’ and he said, ‘The driver go for bush.’ The colour of the lorry was either black or blue-black and there was no light at all on it. I was about ten yards away when I saw the lorry itself.”
He was cross-examined, and gave the following further evidence: “The man I saw said he was a
watchman guarding the lorry. He did not tell me the lights of the lorry had failed. He helped me to get the plaintiff out…. I was at the scene for about five to ten minutes.” There was, therefore, the testimony of the plaintiff confirmed by that of his principal witness that the defendant’s stationary lorry was completely without any light on it.
On the part of the defendant, however, the negligence alleged and the particulars thereof set out under paragraph three of the statement of claim were denied in the statement of defence, and at the trial evidence as to the defendant’s vehicle having a light on it at the material time was adduced, without any objection on behalf of the plaintiff that the fact had not been pleaded. Note in this connection, the statement of the legal position per curiam in Abowaba v.
Adeshina,5 that:
“There are certain types of evidence, such as hearsay, and unstamped or unregistered documents which are inadmissible per se, they cannot form the basis for a decision, and objection to them may be taken at any stage of a trial or on appeal, but in our opinion the case is different where evidence, which could have been ruled out as inadmissible because it is adduced to prove a material fact which was not pleaded, has nevertheless been adduced without objection and is before the Judge.”
In our opinion the evidence as to waiver or forfeiture in this case falls within the latter class, and the trial judge was bound to take it into consideration. The evidence as to a light on the defendant’s lorry at the material time was given by Ali Moshie, the defendant’s only witness, as follows:
“I am employed by the defendant . . . I watch his house. I remember the night when an accident happened on the Accra-Nsawam Road involving my master’s lorry and the plaintiff ‘s car. The lorry was out of order, so I was sent to go and keep watch over it because it had a load of cocoa on it. I was given a lantern: the kind which is pumped. It was lighted and I put it on the top of the cocoa in the middle of the lorry. I sat in the front of the lorry on the driver’s seat. The driver came to Nsawam and reported to the defendant that the fitter sent out with him could not repair the lorry. The defendant then took me in his car and put me down at the spot . . . I had to take a lantern because the lorry had no lights. The lorry had no lights because it was out of order. The lights were out of order and that was why the fitter went. The lights could not be repaired. The lorry was parked on the left side of the road close to the edge of the road. I had to keep the lamp on the cocoa to prevent thieves removing the cocoa and also to warn approaching vehicles. While sitting in front many vehicles passed from both directions. I arrived at the spot at 6 p.m. At about 11.30 p.m. I heard a vehicle approaching from Nsawam direction with full speed. I heard the sound of the engine, and it violently hit the lorry and pushed it forward. The lamp on the cocoa fell to the road, got broken, and the light went out . . . I alighted and went to the vehicle and saw plaintiff.”
When he was cross-examined, the following further evidence was elicited from him:
“The lorry I was watching had a trailer. It was a big lorry but the trailer was not so big. They were all fully loaded with cocoa. We filled the lamp with kerosene . . . I put the lamp on the cocoa on the lorry. The cocoa had been covered with tarpaulin so I put the lamp on the tarpaulin. I did not tie the lamp . . . There was no light on the trailer but there was a red reflector on it … It is true that there were two reflectors at the back of the trailer . . . It is true that at the time of the accident there was a lantern on the lorry.”
Finally, he was re-examined and stated:
“It was necessary for me to have a lantern because it was bush and if anybody tried to steal the cocoa I should be able to see him. I could see a distance of about twelve yards.”
From the foregoing reproduction of the respective evidence of each side with regard to the question of the absence or presence of a light on the lorry at the material time, it seems to me to be impossible not to be struck by the ostensible circumstance that whereas on the side of the plaintiff there was just the bare assertion from both himself and his witness that there was no light on the lorry, on the side of the defendant the witness Ali Moshie gave some measure of explanations as to how and why, as he alleged, a lantern was on the lorry.
The learned trial judge eventually came to examine and consider the evidences of the parties with the object of assessing their respective credibility, or lack of it, so as to make findings of fact in respect of the issue of the absence or presence of a light on the lorry, and he started, very properly in my view, by reminding himself of the relevant evidence available in support, firstly, of the plaintiff’s case. Accordingly he proceeded to refer directly to the material evidence initially, of the plaintiff, as follows:
“While the plaintiff was driving a Fiat car . . . along the Accra-Nsawam road towards Accra, he saw the lights of a vehicle approaching from the opposite direction. The driver of the said vehicle dimmed his head-lights and the plaintiff did likewise and reduced his speed to thirty miles per hour. When the two vehicles were about to pass each other, the plaintiff crashed into the trailer of the defendant’s unlighted stationary Bedford lorry which had been parked in such a manner as to occupy, and did occupy, 75 per cent. of the roadway . . . Although plaintiff’s vision was between ten to twelve yards, he did not see the stationary lorry and trailer because they were wholly unlighted.”
He referred next to the evidence of the plaintiff’s witness as follows:
“He was driving a Mercedes-Benz car from Accra proceeding towards Nsawam when he saw the lights of a vehicle approaching from the opposite direction. He dimmed his head-lights and the driver of the on-coming vehicle also did the same … As the two vehicles were about to pass each other, plaintiff ‘s car collided with an unlit stationary lorry and trailer. He saw the said lorry four or five seconds before the plaintiff ran into it. It was wholly unlit.”
He then came to consider, similarly, the relevant evidence available in support of the defendant’s case on this issue of the absence or presence of a light on the lorry at the material time, but, for some reason which it is, undoubtedly difficult to understand, he did not find it necessary any longer to remind himself about the material evidence made available by Ali Moshie in support of the defendant’s case. What he did was rather to proceed right away to express his disbelief and consequential rejection of the whole of the witness, Ali Moshie’s evidence, in these words:
“Ali Moshie, the sole witness called by the defence, did not impress me as a witness of truth . . . He pretented not to understand simple questions and prevaricated. I am inclined to think that he was asleep in the driver’s cab and was awakened by the impact. He himself admitted in re-examination by counsel for defence that he became frightened and excited and did not really know what happened. His evidence is unreliable and I do not believe it.”
This manner or method in which the learned trial judge considered and dealt with the defendant’s substantial defence to the action, has come to constitute the main grievance of the defendant against the judgment of the learned judge. He has complained by ground six of his grounds of appeal that: “the learned trial judge was wrong in rejecting the whole of the evidence of the defendant’s witness. He also failed to make a proper finding as to whether he believed the defendant’s witness that he put a (lighted) white lamp on defendant’s vehicle,” and after deep and anxious consideration I am impelled to the conclusion that there is substance in the complaint.
In the first place the reasons advanced or expressed by the learned judge as having operated to give him such an unfavourable view of the witness Ali Moshie’s evidence, seem, with respect, to be somewhat unimpressive and irrelevant. In respect of the charge that the witness pretended not to understand simple questions, surely, it is not to be expected that a Moshie man speaking Twi in court through a typical untrained court interpreter will manifest the same facility or ease and promptitude of comprehension and understanding which can or might be expected from a natural born Akan! As to his having been asleep in the driver’s seat of the lorry until awakened by the impact, it seems difficult to understand, even if that were truly the case, how it is suggested that could possibly affect his description or narrative of the events which took place before he could possibly have settled himself to sleep, i.e. the events of his being taken in a car from Nsawam to the spot on the road where the lorry and trailer were struck, and what he did as soon as he got there. As his evidence about the placing of a lantern on the lorry comes within the narrative of those events prior to his getting a chance to fall asleep, I confess I find it difficult to comprehend how the fact of his falling asleep, if true, becomes relevant on the question of the truth or untruth of his description of those prior events. The witness Ali Moshie was also charged with a tendency or propensity to prevaricate during the course of his evidence; but how infinitely better and more convincing it would have been to indicate clearly the specific instances of prevarication on material points or questions. In the same way when the learned judge concluded his ex facie most cursory consideration of the witness’s evidence with the condemnation that “his evidence is unreliable,” how much more satisfactory and assuring it would have been to point out the portions of the evidence which tend to give that impression of being unreliable, and better still, explain briefly how, why, and in what respects, these portions tend to give that impression of unreliability.
In the second place, is the conclusion expressed by the learned judge in these words, “His evidence is unreliable and I do not believe it; I accept the evidence of the plaintiff and Samih Eid as a true account of the accident”; sufficiently clear and unambiguously plain and pointed as to a precise or specific finding in respect of the cardinal issue of fact whether or not there was a light on the lorry at the material time? I think not. It is in this connection that it becomes so particularly pertinent and important that the learned judge did not, in his review of the evidence of witnesses in his judgment, mention or refer to Ali Moshie’s evidence as to placing a light on the lorry; nor, without necessarily mentioning that piece of evidence in his review of evidence, even reject the evidence specifically in or by any part of his said judgment. After the passage above set out where the learned judge expressed his disbelief of Ali Moshie’s evidence, he made certain references in later or subsequent passages of his judgment to the unlighted condition of the stationary lorry; the indication from those references, however, point to his having his mind all the time on the lighting system of the lorry, which admittedly was out of order so that no light came from that at any material time, but that his mind was not at any time directed to a lantern placed on top of the cocoa in the lorry as testified to by Ali Moshie, to
enable him to make a finding that such a light was or was not on the lorry at the material time, and if it was, its adequacy or inadequacy as a warning light to other motorists using the road. The said references to the unlighted condition of the lorry are these: (a) “Upon careful consideration of the evidence … I find as a fact that the defendant’s said unlighted black Bedford lorry and trailer were a dangerous obstruction on a dark night on the said Accra-Nsawam Road … I find also that the breakdown of the said lorry and failure of its lighting system did not happen suddenly in the night but had taken place during the day to the knowledge of the defendant”; and (b) “It is the duty of the owner of an unlighted stationary vehicle which causes obstruction on the highway at night to take reasonable steps to remove it or render the obstruction safe. If he fails to do so, he should give an explanation as to the circumstances and reasonable steps taken by him to warn road users of the danger. In this case, the defendant has not explained the cause of the breakdown of the vehicle and the failure of its lighting system.” It is by this last passage especially where the learned trial judge observes that “reasonable steps should be taken to warn road users” but by implication suggests or holds that no such steps were taken, or rather that there was no evidence available on behalf of the defendant of any such reasonable steps taken, that it seems to me to have been made clear beyond a shadow of doubt that it is not a case of the learned trial judge having impliedly rejected Ali Moshie’s evidence as to his placing a lantern on the cocoa in the lorry, but rather a
case where somehow the learned judge never had that evidence in mind at all during his consideration of the case as a whole and therefore never made any finding in respect of it.
As to this situation of the summary dismissal or rejection of the case of a party in or to an action without a clear and definite examination of a specific allegation of fact put forward by him as the foundation of his case, the case of Craven v. Craven, 6 appears to be in point and relevant. It was an appeal against a commissioner’s dismissal of a wife’s petition for divorce on the ground of her husband’s alleged cruelty which the husband denied. At the hearing of the appeal, counsel on her behalf submitted that the commissioner in his judgment had failed to make findings on the issue of cruelty, on which findings were vital. He contended that “the judicial process was a duty to resolve the facts in issue and facts relevant to the issue and then to apply the law to the facts found. If the question: ‘What were the facts found?’ could not be answered with precision and particularity, the judgment ought to be held to be unsatisfactory. The commissioner here did not find the facts with sufficient particularity, and that vitiated his conclusion, which was based on one sentence only in which he said that the wife had ‘exaggerated’.”
Pausing here and applying learned counsel’s criticisms on the judgment in that case to the judgment in the instant case, it seems reasonably clear that just as in that case the commissioner, without finding with precision whether the fact of cruelty alleged was true or not, merely proceeded to reject the wife’s case and dismiss it, so in the instant case, the learned judge, without finding with precision and exactitude whether there was or was not a lighted lantern placed on top of the load of cocoa in the lorry, proceeded to reject Ali Moshie’s evidence which constituted the defendant’s defence.
Continuing with the review of the Craven case (supra) senior counsel for the husband, in reply to the submissions on behalf of the wife, submitted that if it was possible to take the view, from the words used by the commissioner, that he rejected the wife’s evidence, he had ample justification for doing so. Junior counsel for the husband then appears to have been allowed to make further submissions and he submitted that there was on the record a clear expression of what the commissioner in fact thought of the wife. He (the commissioner) had said that on the whole he could not be satisfied that she had discharged the heavy burden of proof placed on her by the law. [His lordship here reviewed the decision of the court in Craven v. Craven where it was held that the commissioner had failed to make up his mind one way or the other on the facts and therefore ordered a new trial, and continued:] In the case of Benmax v. Austin Motor Co., Ltd. (supra) Lord Simonds L.C. discussed the distinction 7: “between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts.” Continuing his discussion he stated this: “An example of this distinction may be seen in any case in which a plaintiff alleges negligence on the part of the defendant. Here it must first be determined what the defendant in fact did and, secondly, whether what he did amounted in the circumstance (which must also so far as relevant be found as specific facts) to negligence. A jury finds that the defendant has been negligent, and that is an end of the matter unless its verdict can be upset according to well-established rules. A judge sitting without a jury would [however] fall short of his duty if he did not first find the facts and then draw from them the inference of fact
whether or not the defendant had been negligent.”
In my view, therefore, the learned trial judge in the instant case, in the language of Lord Simonds L.C., “fell short of his duty” in failing to make a specific finding on the crucial issue of fact as to whether or not there was a light on the defendant’s lorry at the material time as alleged by the defendant’s witness Ali Moshie, and for that and the reasons indicated in the judgment of Apaloo J., I agree this appeal should be allowed and the action remitted for hearing de novo by another judge.
JUDGMENT OF MILLS-ODOI J.S.C.
For the reasons which have been given by my brethren, with which I entirely agree, I also think that this appeal should be allowed and the case remitted to the court below for a re-trial by another judge.
DECISION
Appeal allowed.
New trial ordered.
N.A.Y.
