clr/1963/1963_2_304.pdf

(1)—" A promise made without any intention of per­ forming it ", or " any other act fitted to deceive "—Section 17

(1)(c) and (d), respectively. Appeal—Findings of fact by trial Courts—Credibility of witnesses— The High Court will not readily disturb such findings based on the credibility of witnesses. Section 17 (!) of the Contract Law, Cap. 149, reads as fol­ lows :— " 17

(1)*Fraud ' includes any of the following acts com­ mitted by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract— (

1. a)the suggestion, as to a fact, of that which is not true by one who does not believe it to be true ; (
2. b)the active concealmentof a fact by one having knowledge or belief of the fact ; (
3. c)a promise made without any intention of performing it ; (
4. d)any other act fitted to deceive ; (
5. e)By an agreement in writing dated the 9th February, 1962, the respondents agreed to sell to the appellant a plot of land. By clause 2 of the agreement it was stipulated that the sale price was the sum of £200 which the purchaser (appellant), as it was stated in that clause, " willpay and in fact he paid to the vendors (respondents) today in cash". Clause 3 provided that the aforesaid property would be transferred to the pur­ chaser (appellant) not later than the 9th of May, 1962, and clause 4 stipulated further that if the vendors failed to transfer the property in question in the name of the purchaser by the 304 9th of May, 1962, they would bebound to refund " the above amount tothepurchaser andtopay£50 as damages". The vendors (respondents) having failed to transfer the property as agreed, the purchaser (appellant) instituted proceedings against them claiming therefund of the aforesaid amount of £200 stated in clause 2 of the contract to have been paid by him on the execution of the contract—and damages for breach of contract. The vendors-defendants by their defence alleged that theplaintiff-purchaser paid £40in all as against the price, andnot £200 as it was stipulated in clause 2 of the contract sued on; andthat they have been induced to sign the said contract by the fraudulent representations onthe part of the plaintiff-purchaser in that he fraudulently represented to them that, apart from the sum of £40 which wasthere and then paid by him tothe defendants, hewould paytothem the balanceof£160and thatifthey signed thecontractwith clause 2 as itwasdrafted i.e.that the full sumof £200 hadbeen paid, he would pay them thebalance of£160when the parties would return from the town of Famagusta (where thecontractwas signed) to their village on that same day. The defendantsvendors further contended by their statement of defence that the aforesaid balance of £160 hadnotbeen paid. The trial Court after hearing the two conflicting versions preferred the version of thedefendants, rejected that ofthe plaintiff, andgave judgment for theplaintiff for thesum of £40 only, dismissing the counterclaim of the defendants on the ground that the facts proved cannot support a finding of fraud. Theplaintiff (purchaser) appealed against that judg­ ment, attacking the finding of the trial Court that only£40 had been paid by himagainst the sale price—there wasno cross-appeal by thedefendants against thedismissal of their counterclaim. The High Court indismissing the appeal gave three different sets of reasons and:— ' Held, per JOSEPHIDES, J. (WILSON, P., concurring):

(1)The defence clearly raised the issue of fraud andit was on that basis that at thehearing the defendants were allowed to lead evidence to contradict the written contractofsale which stated expressly that thesumof £200 hadbeen actually paid in cash onthe 9th February, 1962, thedate of the execution of thecontract.

(2)Thetrial Court after hearing thetwoconflicting ver­ sions preferred the version of the defendants and rejected that of the plaintiff. In doing so, the trial Court had the opportu305 ι I 1963 June 27 NICOLAS NICOLA MARKOU MASIOUTA v. GEORCHIOS NICOLA SKOULLOU AND OTHERS 1963 June 27 NICOLAS NICOLA MARKOU MASIOUTA v. GEORCHIOS NICOLA SKOULLOU AND OTHERS nity of watching the demeanour of the witnesses while giving evidence, and in fact the judgment contains an estimate of these witnesses. In the circumstances, so far as the credibility of the witnesses goes, it could not be advisable for this Court to reverse the finding of fact of the trial Court. The finding was to the effect that only the sum of £40 was paid to the defendants and that the plaintiff there and then promised that when they returned to the village on that day he would pay the balance of £160 to the defendants.

(3)With great respect to the trial Court I am of the view that their finding offact comes within themeaning of the definition of " f r a u d " in section 17, sub-section

(1),ofour Contract Law, Cap. 149, (supra).

(4)To my mind, the promise made by the plaintiff on that day that he was to pay the balance of £160 to the defendants on the same day at the village was either " a promise made without any intention of perfoming i t " or " any other act fitted to deceive ", within the meaning of section 17(c)and (d), respectively, of the Contract Law, Cap. 149 (supra).

(5)In the circumstances, on the finding of fact made by the trial Court the defence of fraud was proved and the Court rightly gavejudgment for the plaintiff for the sum of £40 only, which was admitted by the defendants, and they rejected the plaintiff's claim as regards the sum of £160.

(6)The claim for damages was abandoned by the plaintiff and there is no cross-appeal by the defendants on the counterclaim. Held, per ZEKIA, J . : My reason for the dismissal of the appeal lies in the fact that the evidence accepted by the trial Court amply justifies the finding that the amount of money actually passed into the hands of the defendants was £40 and not £

1. Therefore, there was no case of returning to the plaintiff any amount over and above the £40 as ordered by the Court. The finding of the facts by the trial Court to my mind doesnot necessarily amount tofraud becausethe intention to defraud the defendants on the part of the plaintiff, as the evidence stands, might not have been present in the mind of the plaintiff at the time of the execution of the contract of sale. Held, per VASSILIADES, J.: I agree that this appeal must be dismissed with costs. But I reach this conclusion upon the finding of the trial Court on the main issue of fact raised 306 by the pleadings, namely, that the plaintiff paid only £40 against the contract-price, as alleged by the respondents ; and not the full price of £200 as claimed by the appellantplaintiff. This was the main issue upon which evidence was adduced by both sidesat the trial ;and there isample material on record to supportandjustify thetrial Court's findings. Indeed, looking on the evidence as a whole, I have no hesitation in saying that any other finding would appear to me unreasonable, in the circumstances. The claim for damages was hardly pursued at the trial ; and not having been substantiated in the least, was rightly dismissed. Respondents' counterclaim, which was also dismissed by the trial Court, is not be'fore us in this appeal. For these reasons, I think, theappeal must fail ;and, without entering into other matters, I would dismiss it with costs. Appeal dismissed with costs. Appeal. Appeal against the judgment of the District Court of Famagusta (Michaelides P . D . C . and Loizou D.J.) dated the 9.3.63 (Action No. 973/62) whereby plaintiff's claim for the refund of £200, being money paid by virtue of a written agreement of sale between the parties, dated 9.2.62, and for £500 damages for the breach of the aforesaid agreement was dismissed and judgment was given in their favour for the sum of £40 only. Chr. P. Mitsides with O. Mehmet for the appellant. M. Monianios for respondents Nos. 1 and
2. No appearance for respondent No.
3. T h e facts sufficiently appear in the judgment read by JOSEPHIDES, J. W I L S O N , P. : We think it is unnecessary to-call on you Mr. Montanios. T h e result in this case is that the appeal will be dismissed with costs but there are 3 different sets of reasons for arriving at this conclusion. I concur in the reasons about to be delivered by M r . Justice Josephides but I shall first call on Mr. Justice Zekia to give his reasons for Judgment. ZEKIA, J. : My reason for the dismissal of the appeal lies in the fact that the evidence accepted by the trial Court 307 1963 June 27 NICOLAS NICOLA MARKOU MASIOUTA v. GEORCHIOS NICOLA SKOULLOU AND OTHERS 1963 June 27 NICOLAS NICOLA MARXOH MASIOI/IA v. GEORGHIOS NICOLA SKOLLI.OU AND ΟτΐΙ£.'.<5 amply justifies the finding that the amount of money actually passed into the hands of the defendants was £40 and not £
4. Therefore, there was no case of returning to the plaintiff any amount over and above the £40 as ordered by the Court. The finding of the facts by the trial Court to my mind does not necessarily amount to fraud because the intention to defraud the defendants on the part of the plaintiff, as the evidence stands, might not have been present in the mind of the plaintiff at the time of the execution of the contract of sale. Zekia, J. VASSILIADES, J. : I agree that this appeal must be dis­ missed with costs. But I reach this conclusion upon the findings of the trial-Court on the main issue of fact raised by the pleadings, namely, that the plaintiff paid only £40 against the contract-price, as alleged by the respondents ; and not the full price of £200 as claimed by the appellantplaintiff. This was the main issue upon which evidence was adduced by both sides at the trial ; and there is ample material on record to support and justify the trial-Court's findings. Indeed, looking on the evidence as awhole, I have no hesita­ tion in saying that any other finding would appear to me unreasonable, in the circumstances. The claim for damages was hardly pursued at the trial ; and not having been substantiated in the least, was rightly dismissed. Respondents' counterclaim, which was also dismissed by the trial-Court, is not before us in this appeal. For these reasons, I think, the appeal must fail ; and, without entering into other matters, I would dismiss it with costs. JOSEPHIDES, J. : The plaintiffs claim in this case was for £200 refund of money paid by virtue of a written agree­ ment of sale between the parties, dated the 9th February, 1962, and for £500 damages for the breach of the aforesaid agreement. The agreement signed on the 9th February, 1962, by the plaintiff (appellant) and the three defendants (respondents) was to the effect that the three defendants agreed to sell to the plaintiff a plot of land, Plot No. 44, 3/16th shares, in 3 donums and 1 evlek, at Ayia Napa village. Clause 2 of the agreement stipulated that the sale price was £200 " which the purchaser will pay and in fact he paid to the vendors today in cash". Clause 3 provided that the aforesaid 308 property would be transferred not later than the 9th May, 1962, and clause 4 stipulated that if the vendors failed to transfer the said property in the name of the purchaser by the 9th May, 1962, they would be bound to refund " the above amount to the purchaser and to pay the amount of £50 as damages and/or otherwise." The plaintiff in his statement of claim alleged that the aforesaid sum of £200 was actually paid to the defendants on the 9th February, 1962, and that the defendants failed to transfer the property by the 9th May,
5. By their defence the defendants admitted the signing of the agreement but in paragraph 4 they alleged— (i) that the defendants did not receive the sum of £200 mentioned therein and that they received onlv £40 in all ; (ii) that the defendants signed the said contract of sale after they had been induced to that effect by the false and/or fraudulent representations of the plaintiff in that— (a) at the time and for the purposes of the said contract of sale, the plaintiff orally and falsely represented to the defendants that, apart from the £40 which were there and then paid to the defendants he would pay to them a further sum of £160 and that if they included in that contract a term that the total sum of £200 had been paid, he would pay them the balance of £160 when the parties returned from Famagusta to their village on that same day ; (b) the plaintiff made the said representations either well knowing that they were false or recklessly and not caring whether they were true or false ; and that (c) by means of such false and/or fraudulent represen­ tations the plaintiff induced the defendants to sign the said contract of sale. It was further contended in the statement of defence thatthe balance of £160 had not been paid. The defendants then counter-claimed for (i) a declaration that they were induced to sign the said contract by the false and/or fraudulent misrepresentations of the plaintiff ; (ii) a declaration that the plaintiff paid to the defendants £40 only, and not £200, as against the purchase price under the said contract of sale: and (Hi) rescission of the said contract of sale ; 3U9 1963 June 27 NICOLAS NICOLA MAKKOU MASIOLTA V. GEORCHIOS NICOL\ SKOIILLOU A N D Ο Τ Η Γ Ι Ι ? Josephides, J. 1963 June 27 And, in the alternative, the defendants counterclaimed £160 being the unpaid balance of the agreed purchase price. NICOLAS NICOLA MARKOU MASIOUTA v. GEORCHIOS NICOLA SKOULLOU AND OTHERS Josephides, J. The defence clearly raised the issue of fraud and it was on that basis that at the hearing the defendants were allowed to lead evidence to contradict the written contract of sale which stated expresslythat the sum of £200 had been actually paid in cash on the 9th February, 1962, the date of the execution of the contract. The trial Court after hearing the two conflicting versions preferred the version of the defendants and rejected that of the plaintiff. In doing so, the trial Court had the opportunity of watching the demeanour of the witnesses while giving evidence, and in fact thejudgment contains an estimate of these witnesses. In the circumstances, so far as the credibility of the witnesses goes, it would not be advisable for this Court to reverse the finding of fact of the trial Court. The finding was to the effect that only the sum of £40 was paid to the defendants and that the plaintiff there and then promised that when they returned to the village on that day he would pay the balance of £160 to the defendant. There is no doubt that on that finding of fact the defence of fraud had been proved. Nevertheless, when the trial Court came to consider the counter claim, which they dismissed, they said this : " We dismiss the claim on the counterclaim as per para. 11 (i) because even if there were false or fraudulent misrepresentations on the part of the plaintiff, as alleged—with which contention we do not agree— there existed another remedy by the defendants against the plaintiff and they cannot use a declaration of the Court as a basis to cancel the contract, on the basis of the said allegations, which, even if proved, would make the contract only voidable at the option of the party and entitle them further to damages. They cannot use the Court as a means to avoid the contract which they could so avoid, if they were themselves persuaded that they were defrauded". With great respect to the- trial Court I am of the view that their finding of fact comes within the.meaning of the definition of " f r a u d " in section 17, sub-section

(1), of our Contract Law, Gap. 149. That section reads asfollows : " 17.

(1)' Fraud' includes any of the following acts committed by a party to a contract, or with his 310 connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract— " (

1. a)the suggestion, as to a fact, of that which is not true by one who does not believe it to be true ; (
2. b)the active concealment of a fact by one having knowledge or belief of the fact ; (
3. c)a promise made without any intention of performing it ; (
4. d)any other act fitted to deceive ; w " To my mind, the promise made by the plaintiff on that day that he was to pay the balance of £160 to the defendants on the same day at the village was either " a promise made without any intention of performing i t " or " any other act fitted to deceive". In the circumstances, on the finding of fact made by the trial Court the defence of fraud was proved and the Court rightly gave judgment for the plaintiff for the sum of £40 only, which was admitted by the "defendants, and they rejected the plaintiff's claim as regards the sum of £160. The claim for £500 damages was abandoned by the plaintiff and there is no cross-appeal by the defendants on the counterclaim. For these reasons the appeal is dismissed with costs. Appeal dismissedwith costs. 311 1963 June 27 NICOLAS NICOLA MARKOU MASiourA v. GEORGHIOS NICOLA SKOULLOU AND OTHERS Josephides, J.