ISMET DERVISH AND OTHERS ν. MUNIR HANIM IZZET AND OTHERS. (V16) 1 CLR 98 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V16) 1 CLR 98 1938 December 8 [CREAN, C.J., FUAD AND GRIFFITH WILLIAMS, JJ.] ISMET DERVISH AND OTHERS, Plaintiffs-Respondents, v. MUNIR HANIM IZZET AND OTHERS, Defendants-Appellants. (Sheri Appeal No. 27.) APPEAL-TRIAL COURT'S FINDINGS OF FACT-DUTY OF COURT OF APPEAL IN DEALING WITH QUESTIONS OF FACT. Appeal from a judgment of the Sheri Court of Famagusta whereby the plaintiffs were declared to be lawful heirs of one deceased Hussein Fikri. The defendants appealed from this decision mainly on the ground that "the judgment was against the weight of the evidence." HELD: That a Court of Appeal ought not to take the responsibility of reversing findings of fact by the trial Court, merely on the result of their own comparisons and criticism of the witnesses, and of their own view of the probabilities of the case. In a case where the trial judge's estimate of the witness forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should be let alone. Cr. Tornaritis with M. Zelcia for the appellants. Fadil Niazi Korkut for the respondents. This case is reported solely on the question of the duty of the Court of Appeal in dealing with the trial Court's findings of fact. Therefore only extracts from the judgments dealing on this particular point are given. CREAN, C.J.: It is perhaps well to state here what are the principles which have been established to regulate the duty of the Court of Appeal in England in cases such as this where findings of facts are the subject of the appeal. It is said by Lord Wright in the case of Powell against the is treat ham Manor Nursing Home, A.C., 1935, p. 243, that the essence of the matter is now contained in the initial words of Order LVIII, rule 1, which are as follows: "All appeals to the Court of Appeal shall be by way of "re-hearing." By the same order but by rule 4 thereof it is set out "The Court of Appeal shall have power to draw inferences of fact and "to give any judgment and make any order, which ought to have been "made." The analogous Order in Cyprus, at present, is Order 35 and the rules are 3 and
- The wording is similar and so it may be taken then that the powers and duties of this Court are similar to those of the Court of Appeal in England. Lord Wright in the above case has commented on the working of these rules and, as I don't feel that I can improve on his words, I give them in full. They are: "Where the trial has been before a judge alone the "rehearing is had on the evidence given before the judge." It is pointed Out, however, by Lord Wright that in effect "the rehearing very different from the original hearing: It is a rehearing on documents, including the judge's notes, whereas the judge who originally "heard the case both saw and heard the witnesses, and during an "examination and cross-examination, often prolonged and searching, "had abundant opportunity of forming an opinion as to their relative "trustworthiness or the reverse." In the case of Hontestroom (Owners) v. Sagaporack (owners) (L.J. (P.) 95, p. 153) the rule which authorizes the Court of Appeal to rehear the case is considered by Lord Sumner in his judgment and it is said by him "that as the appeal is made are hearing of the case there is a "judicial obligation on the Court of Appeal to take account of that "fact." But His Lordship goes on to say in the same judgment and immediately following his reference to the duty of a Court of Appeal: "None the less, not to have seen the witnesses puts Appellate Judges "in a permanent position of disadvantage as against the trial judge, "and, unless it can be shewn that he has failed to use or has palpably "misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result "of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case." He adds a little later in the same judgment: "If the trial judge's estimate of the man (the "witness) forms any substantial part of his, reasons for his judgment "the trial judge's conclusion of fact should be let alone." The position of the Court of Appeal on an appeal from a finding of fact is one of some difficulty as shewn by the decisions I have just referred to. Their Lordships seem to think it is impossible to lay down any precise rule to solve the problem which faces the Court of Appeal when it has to act as a judge of fact on the rehearing, but finds itself "in a permanent position of disadvantage as against the trial judge." It is also said by Lord Wright in the above judgment Powell v. Streatham N. H. "The problem in truth only arises in cases where the judge has found crucial facts on his impression of the witnesses: "many, perhaps most cases, turn on inferences from facts which are not "in doubt, or on documents: in all such cases the Appellate Court "is in as good a position to decide as the trial judge. But where the evidence is conflicting and the issue is one of fact depending on "evidence, any judge who has had experience of trying cases with witnesses cannot fail to realise the truth of what Lord Sumner says: "as the evidence proceeds through examination, cross-examination "and re-examination the judge is gradually imbibing almost instinctively, but in fact as a result of close attention and of long experience, "an impression of the personality of the witness and of his trust "worthiness and of the accuracy of his observation and memory or the "reverse. He will not necessarily distrust a witness simply because "he finds him inaccurate in some details; he can give such inaccuracy "its proper place, particularly if he sees that the witness is tired or "antagonised, or confused, or perhaps impatient, and especially if the "matter of the inaccuracy is of minor or collateral importance. But "such inaccuracies may appear in a very different light when pointed "to as isolated passages in the shorthand notes and abstracted from, the "human atmosphere of the trial and from the totality of the evidence. "The judge will form his impression form the whole personality of the "witness: he can allow for the nervous witness, standing up in a "crowded court or worried by the strain of cross-examination. The "judge may be deceived by an adroit and plausible knave or by apparent "insolence: for no man is infaffible; but in the main a careful, and "conscientious judge with his experience of courts is as likely to be "correct in his impressions as any tribunal unless perhaps, as some "would say, a jury of twelve members is preferable. Yet even where "the judge decides on conflicting evidence, it must not be forgotten "that there may be cases in which his findings may be falsified, as for "instance by some objective fact." In the appeal before us there does not appear to be any objective fact to falsify the finding of the judge that a nikiah had been effected between Fikri, deceased, and Ismet. In his written judgment it can be seen what his impression of the personality of the witness Hoja Emin was, as he refers to him as an open hearted person. It must be taken from this, that he looked on him as a superlatively honest and trustworthy man, and from this reference to the Hoja it seems clear to me that his estimate of this witness and the others who corroborated him, did form a substantial part of his reason for his finding on this issue. Therefore, according to the authority of Lord Sumner the judge's conclusion of fact should be let alone. It is quite true there were some contradictions and inaccuracies in his, evidence, but, on the whole the trial judge accepted his evidence as true and reliable. The trial judge found that a nikiah had been performed, and if one follows the two principles which are supposed to be beyond controversy it would be very difficult to disturb his finding. The first of these principles is, that in an appeal of this character, that is, from the decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, the Court of Appeal must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced it is wrong. I am far from being convinced his decision is wrong in fact I am inclined to think it is right; therefore, I apprehend this Court has no right to disturb his finding that Ismet was the wife of Fikri, deceased, and that the plaintiffs 2, 3 and 4 were his children born in wedlock from Ismet. FUAD, J.: I am afraid that the question of the credibility of these witnesses is not one for this Court to consider. Where the credibility of a witness comes into question, the rule is that weight is to be attached to the views of the trial judge who has had the opportunity of observing the demeanour of the witness and judging his accuracy and veracity. The learned Sheri Judge found that all these witnesses were witnesses of truth. It is not possible for this Court to reject that finding on the basis only of improbabilities, contradictions and discrepancies which are found in the record of their testimony before the Sheri Judge, and all which were brought to his notice before he arrived at his decision. GRIFFITH WILLIAMS, J.: This Court is a Court of Appeal and is subject to the disadvantages attached to such Court when dealing with disputed questions of fact. It has been argued before us that every appeal is by way of rehearing as it is in England under Order 58, rule
- Though when we heard this appeal Rules of Court, 1938, had not come into operation and there was nothing in our code to say that appeals were to be by way of rehearing; since our procedure is modelled on that of England-our Order 21, rule 20 (Rules of Court, 1927) being taken from English Order 58, rule 4-we must, I think, be held to have that power. This means that the Court of Appeal has power to upset the judgment of a Court of first instance on questions of fact as well as points of law, and is in this respect in the same position as the Court of Appeal in England. There is a long line of English authorities, however, on the proper exercise by the Court of Appeal of this power, and in practice consider ably limiting it. They lay stress on the fact that the Court of Appeal is not in the same favourable position to weigh the evidence of witnesses as is the judge of first instance, and say that it should be very loth to interfere with a judgment on facts deposed to by witnesses unless quite convinced that the lower Court was wrong-in other words: "That "the judgment was against the weight of the evidence." There are, of course, questions of fact on which a decision is sought where the Court of Appeal is in just as favourable position as the trial judge, but this can never be when the decision must rest on the credibility of witnesses. All the decided cases are agreed that the Court of Appeal should not interfere with the judgment of the trial Court where it rests on the judge's belief in the truthfulness of the witnesses who have given evidence before him. The only exception to this would seem to be where a witness believed by the trial judge has made a statement clearly inconsistent with some incontrovertible fact otherwise established. The case before us rests on the credibility of the two apparently independent witnesses, the Hodja and Theodora, to the performance of a formal marriage ceremony; and though the learned trial judge had before him all the curious inconsistencies and contradictions that I have already referred to, he believed their testimony. The Hodja's evidence in itself was insufficient to establish the performance of this particular nikiah, but the evidence of Theodora supplies the necessary omissions in his statement, in that she testifies to the presence in person of the parties most concerned in it. I cannot but feel that if I had been hearing the case at first instance I might have disbelieved the evidence of this witness, and I might have thought the Hodja made a bona fide mistake as to the nikiah; yet the learned Sheri Judge who heard Theodora in the witness box believed her testimony. In spite of its improbability the evidence of the celebration of a formal nikiah ceremony, is not directly contradicted, and cannot be said in the circumstances to be unbelievable. So I do not think that the Court would be justified in interfering with the finding of the learned Sheri Judge that a formal nikiah had, in fact, been performed. Appeal dismissed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο