Oscar Reynard V. William Allan (1934)
LawGlobal Hub Judgment Report – West African Court of Appeal
Partnership or investment by Loan—Distinction between inferences from oral and documentary evidence when subject of appeal—Form of judgment.
Held: Appeal allowed. Judgment set aside. Plaintiff to have judgment entered on the claim.
The facts are fully set out in the judgments.
R. Crowther Nicol for the Appellant. G. J. Christian for the Respondent.
The following judgments were delivered:— DEANE, C..J., GOLD COAST.
In this matter the plaintiff-appellant claimed from the defendant-respondent the payment of £945 17s. 8d. cash advanced to the defendant by plaintiff at the request of defendant. The defendant admitted that of this sum he owed £145 and paid that amount into Court, but contended with regard to the balance of the sum of £945 17s. 8d. i.e. the sum of £800 17s. 8d. that it was the plaintiff’s contribution to a venture under a partnership agreement, and that the venture having totally failed plaintiff was entitled to nothing. The learned Judge accepted the contention of the defendant and entered judgment for him with costs, ordering at the same time that the sum of £145 paid into Court by the defendant be paid out to the plaintiff. Against that judgment the plaintiff has appealed.
First of all as to the form of this judgment—it does not seem to me to be in order. Even if we take the same view of the facts as the learned Judge, the judgment surely should have been for the plaintiff, for £145 with costs up to the time of payment into Court, the defendant to have costs incurred subsequent to that event. To enter judgment for defendant on the claim with costs and at the same time to order payment out to plaintiff of the sum paid into Court is, to say the least, illogical, there being no judgment in favour of plaintiff on which to found such an order which prima facie is in contradiction to the other part of the judgment which finds for defendant on the claim.. This however is perhaps rather technical and I will pass on to the substance of the case.
At the outset it may be noted that this is a case in which the °tear trial Judge took the place of a jury. It has been pressed upon neYnard the Court that he heard the witnesses, saw them in the witness box, •• and was thus in a better position to weigh their evidence than William this Court. That is perfectly true, and did the decision arrived Allan
at by the learned Judge depend solely on the view of the credibility
Deane C.J.
of the witnesses taken by him this Court should be very slow to
interfere.
In the case of The Vlannibanta L.R. 1 Prob. Div. 283, Baggaley, J. after referring to the great weight due to the decision of a Judge of first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of their statements, goes on to say ” But the parties ” to the cause are nevertheless entitled, as well ‘on questions of ” fact as on questions of law, to demand the decision of the Court ” of Appeal, and that Court cannot excuse itself from the task of ” weighing ecnflicting evidence and drawing its own inferences ” and conclusions, though it should always bear in mind that it ” has neither seen nor heard the witnesses and should make due ” allowance in this respect.”
And when as in this case the decision rests not only on the comparative truthfulness of the statements made by witnesses, but on its probability, and on the correctness of the conclusions drawn from their evidence by the learned trial Judge, and above all on the construction put by him on what he describes in his judgment as ” a mass of documentary evidence ” there is an ample field, apart from that of the credibility of witnesses, in which this Court can exercise an unfettered judgment in coming to the conclusion whether the decision was right or wrong, and if on surveying this field it in fact appears that the probabilities are very strongly on the side of the plaintiff, and that the documentary evidence also is overwhelming in his favour, and if in addition the difficulties raised by the learned Judge against accepting plaintiff’s story are capable of a reasonable solution, as they seem to me to be, it will, I take it, be the duty of this Court to set aside the judgment of the trial Judge and enter judgment for the plaintiff.
That all these things are.. so I hope to show.
Now the plaintiff’s story, as may be gathered from the judgment of the learned Judge, was that in July, 1928. the defendant was in a poverty stricken state, his only material asset being certain lands in. Upper Wassaw which he had purchased by auction; that armed with his title deed to these lands he approached the plaintiff, and that the plaintiff thereupon agreed to advance him money to develop these lands, the defendant on his aide agreeing to hand over half of the produce of the land by way of interest on the money lent.
The learned Judge’s comment after setting out these facts is :—” The plaintiff called no witnesses in support of his ” contention, and if his account of what took place is true, it seems ” to me extraordinary that he, astute business man as he claims ” to be, should advance these moneys from time to time to a man ” whom he knew to be penniless—on no other security than ” hypothetical profits of the future—one would have thought he ” would have insisted on a mortgage on the property together with ” a fixed rate of interest.”
Now it is to be noted that while it may be true that plaintiff has no witness to speak as to what took place at the interview when he states he agreed to advance money to defendant—an observation which incidentally applies equally to the defendant—he has produced a mass of evidence in the shape of receipts for the money, as it was advanced from time to time, in which the defendant acknowledges the receipt of the money by way of loan or advances, thereby completely corroborating his story by written admissions of the defendant. I will take a couple of these receipts.
(1)
Dwane*, 5th November, 1919.
Received from Mr. 0. H. Reynard of Dunkwa the awn of £25 (Twenty-five pounds) cash as a loan for wages account.
2d. Stamp (Sgd.) W. P. ALLAN.
(I)
Dunkwa, 3rd December, 1919.
Received from Mr. 0. H. Reynard at Dunkwa the sum of £27 108. (Twenty-seven pounds ten shillings) as a loan for payment of November wages.
2d. Stamp (Sgd.) W. P. ALLAN.
8/12/29
Could there be a more complete corroboration of the plaintiff’s case by admission made by defendant? Surely this evidence is better than the evidence of any witness called to depose as to what occurred at an interview, especially as defendant does not allege any witness was present.
Then we have exhibits 4 and 5 which are accounts stated between the plaintiff and defendant, four covering the period from April 25th, 1929 to November 1st, 1929, and showing a debit balance of £708 18s. 4d., and five that from November 1st, 1929 to April 28th, 1930, showing a debit by the defendant to plaintiff of £890 10s. 84d. at that date. In these statements the defendant is debited with sums paid for wages, tools, food, etc. by the plaintiff. At the end of No. 4 defendant writes : ” I the under” signed Wm. P. Allan have examined and checked this statement ” of account together with the first three statements and I hereby ” certify same to be correct.
” Date 6/11/29.(Sgd.) W. P. Allan “,
while there is an almost identical statement signed by the defendant at the foot of Exhibit 5.
The learned Judge’s comment after setting out these facts is :—” The plaintiff called no witnesses in support of his ” contention, and if his account of what took place is true, it seems ” to me extraordinary that he, astute business man as he claims ” to be, should advance these moneys from time to time to a man ” whom he knew to be penniless—on no other security than ” hypothetical profits of the future—one would have thought he ” would have insisted on a mortgage on the property together with ” a fixed rate of interest.”
Now it is to be noted that while it may be true that plaintiff has no witness to speak as to what took place at the interview when he states he agreed to advance money to defendant—an observation which incidentally applies equally to the defendant—he has produced a mass of evidence in the shape of receipts for the money, as it was advanced from time to time, in which the defendant acknowledges the receipt of the money by way of loan or advances, thereby completely corroborating his story by written admissions of the defendant. I will take a couple of these receipts.
(1)
Dwane*, 5th November, 1919.
Received from Mr. 0. H. Reynard of Dunkwa the awn of £25 (Twenty-five pounds) cash as a loan for wages account.
2d. Stamp (Sgd.) W. P. ALLAN.
(I)
Dunkwa, 3rd December, 1919.
Received from Mr. 0. H. Reynard at Dunkwa the sum of £27 108. (Twenty-seven pounds ten shillings) as a loan for payment of November wages.
2d. Stamp (Sgd.) W. P. ALLAN.
8/12/29
Could there be a more complete corroboration of the plaintiff’s case by admission made by defendant? Surely this evidence is better than the evidence of any witness called to depose as to what occurred at an interview, especially as defendant does not allege any witness was present.
Then we have exhibits 4 and 5 which are accounts stated between the plaintiff and defendant, four covering the period from April 25th, 1929 to November 1st, 1929, and showing a debit balance of £708 18s. 4d., and five that from November 1st, 1929 to April 28th, 1930, showing a debit by the defendant to plaintiff of £890 10s. 84d. at that date. In these statements the defendant is debited with sums paid for wages, tools, food, etc. by the plaintiff. At the end of No. 4 defendant writes : ” I the under” signed Wm. P. Allan have examined and checked this statement ” of account together with the first three statements and I hereby ” certify same to be correct.
” Date 6/11/29.(Sgd.) W. P. Allan “,
while there is an almost identical statement signed by the defendant at the foot of Exhibit 5.
To say, in face of documentary evidence such as these admissions by defendant, that the money has been advanced by plaintiff to him to pay wages, etc: and that he owes all the money, th‘at plaintiff has produced no witness in support of his statement is to my mind irrelevant.
And when in addition it can be demonstrated that all this evidence stands wicontradicted, that the defendant on his side cannot point to a single document in which a payment by the plaintiff to him is referred to either by the plaintiff or by himself as a payment made to a partnership account, this criticism of the learned Judge seems rather lacking in substance.
Then the learned Judge, after commenting in this wise on the plaintiff’s lack of witnesses to support his story, goes on to deal with the probabilities of that story. ” If “, he says, ” his ” account of what took place is true it seems to me extraordinary ” that he, astute business men as he claims to be should advance ” these moneys from time to time to a man whom he knew to be ” penniless on no other security than hypothetical profits of the ” future. One would have thought he would have insisted on a “. mortgage on the property together with a fixed rate of interest.”
Now let us examine this statement to see if the criticism is well founded. To do this it -seems to me necessary to compare the courses that were open to the plaintiff as the man parting with his money. If we accept his story we have this state of things: defendant is penniless in a sense but he is the owner of a fairly large parcel of land, which has some cocoa growing on it; money advanced to him would be used partly in developing the land and would serve to increase the value of the land, and so there would be a valuable asset belonging to defendant on which plaintiff could come down in case it became necessary to recover his money through the Courts–not so safe securitY, it is true, as a mortgage but in the ordinary course of things his money ought to be safe enough: in addition he would be getting by way of interest on the moneys he advanced half of the produce produced on the land, and this might be quite a respectable sum to make the investment from the point of view of profit a better one than a mortgage at fixed rate of interest. As a matter of fact from Exhibits 4 and 5 it appears that plaintiff received as his half share of the produce during the period April, 1929 to April, 1930, the sum of £34 18s. 6d. half of the value of timber sold from the land, plus two sums of £36 16s. and £48 10s. 44d., half of the cocoa sold, a total of £120 4s. 104d. in one year, so that it would seem that as an astute business man he was getting a rate of interest on the moneys he was advancing that would make the ordinary capitalist’s mouth water, while at the same time his money was most of it going to increase his debtor’s assets on which he could fall back if he was not repaid.