clr/1966/1966_1_158.pdf

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1. a)Ί he onus lies p l a i n l y o n to prove their case O n the other h a n d this appeal turns o n issues o f fact and mailers o f l 9 6 6 the sellers-respondents credibility. O n the face o f i t , flic appellant in such a case, has a rather d i f f i c u l t task. a r _ SorocLis MASKS n · THF (
2. b)Hie sellers-respondents relied, almost exclusively, on the c r e d i b i l i t y o f i h c i r t w o employees; and o n an entr> made later in a ledger. ( O Hut, coiisideied against the f o r m o f the ι l a i m in lespondenls', pleadings; Ihe absence o f the invoice ot an\ c o u n l e r p a i l I h c i c o f ; the absence ol" any. debit-note to the alleged buyer (ihe appellant) w i t h i n a reasonable l i m e , or at all . the absence of any correspondence in connect i o n (hereto ; the f n i l u i e l o make any c l a i m , or demand foi pas m e n l , or m e n t i o n whatsoever about ,it f o i over eighteen month-, after Ilie alleged v i k . n o t w i t h s t a n d i n g Un; hLiMnc-s connections between Ihe parlies , the alleged t h r o w i n g awa\ o f Hie signed slips w h i c h u n t i l half-way t h r o u g h the u i a i were supposed to be in the possession of the respondent . thv compfete absence o f an*. evidence o f delivery o r I r a n s p o i ! ol i l u ' t w o t\n:s in que-.lion out o f respondents* p i c m i s e s . the ab^ciwc ol any attempt l o 11 ace such tyies in ihe p o s s e ^ siiin ο ι use ol ihe alleged b n y c i . all these matters constitute ic.isnns w h i ' h must lake a*vav a gieat deal ol the \ \\v.·· oi the naked o i . i l <\ideiKe o f t w o interested witnesses ( Λ ) \ n d (o this I'Mciii, ihe l e a s o n m g undei wlrnJi ihe demeanour o f these witnesses m C o u r t " was considered suf­ ficient to outweigh all thai m a t e r i a l , and to dischaigc the (Mius ol p i o o l in a case oi' sale a n d delivery o f Ihe t w o lyres in question, m Hie a i c u m s L i n c c s o f this case, is, in 0111 u n a m m>Hi\ o p i n i o n , unsalislacloiv : and the f i n d i n g s o f the I n a l C o u r t , based o n such reasoning, must be set aside as not w a n a n l c d by the evidence considered as a w h o l e . Appeal allowed. District Court Judgment of the set aside. Substi­ tuted by a judgment plaintijf'.s action and in the District si\ referred dismissing with costs here Court. to f'homaides ά Co. Ltd. v. l.efkaritis p. 20. 159 Brothers

(1965)1 ( U . K . 'X'*MX ' FIRM T m s 1966 March 17 Patsalides \ Afshanan

(1965)1 C L R. ρ 134 SOFOTLIS MAMAS Phtlippos Charalambous ν Sotiris Demetnou 14, at ρ 19 I· ΪΜ HR\I " A R S I \ " TVRIS 1961 C.L R. Appeal. Appeal against the judgment of the District Couil of Nico­ sia (Demctriades, D J ) dated the 13th November, 1065 (Action No 1214/65) whcicby the defendant was adjudged to pay to the plaintiff the sum of £7 500 mils being the value of two motor car tyres alleged lo have been sold and delivered lo the defendant L Clcrtdes with Chi loannou, for the appellant Α ΙΙμ loannou, for the lespondents The facts of the case sufficiently appear in the judgment of the Court delivered by VASSM IADI-N, J This appeal turns on issues of fact and matters of credibility The appellant challenges the fin­ dings of the trial Judge on the ground that they rest on wrong evaluation of the credibility of witnesses, and aic against the weight of the evidence taken as a whole On the face of it, ihe appellant in such a case, has a lathei difficult task Ih u e is no dispute as to the legal position, which I think, is now clearly settled in our law Section 25 of the Courts ol Justice Iaw, 1960 (No 14/1960) sets the statutory ground on which the matter has to be considered And a number of cases wheie the effect ol the section in question was discus­ sed, dnc] its piovisions wcic acted upon by this Court, make the position iauly cleat Counsel for the appellant referred to rhonuiules & Co Ltd ν Lcfkatttis Btotfuns (

(1965)1 C I R 20) That case was subsequentIv considered together with othci earlier cases on the point, in Patsalides ν Afshanan (

(1965)1 C L R 134) whore the legal position was re-stated The findings οΐ the tnal Court will not be disturbed on appeal, unless the appellant can satisfy this Court that the reasoning behind such findings is unsatisfactory, or that they are not warranted bv the evidence when considered as a whole There is no dispute in Ihe piesent case, aboul the legal position As r t i u r d s findings made on ihe credibility ol witnesses, 7ckia, J , as IK then was, staled the position very cautiously, il I inav say so with Kspcct, as early as February, 1961, in 160 Philippos Churalamhous \. Sotiris Demetriou (1961, C .L.R. p. 14 at p. 19), where, t a k i n g the view that the appeal should be dismissed, he said : 1966 March 17 SOFOCLIS MAMAS ' v. " While I am far f r o m being satisfied o f the way, some judgments arc given by trial Courts where without stating adequate reasons dispose of an issue in the case by me­ rely saying Ί believe or disbelieve so and so*, I w i l l hesitate a lot on the other hand to introduce a principle the ap­ plication o f which might have the effect o f amending the Evidence Law which would constitute a transgression on our part o f the righls o f the legislature ". That was a case heard and decided in the District Court on the law as it stood before the enactment of the Courts of Justice Law, 1960 ; but decided in the Court o f Appeal after the statule containing section 25 came into force L\er since, findings o f trial Courts, whether lesimg on credibility or otherwise, have been considered on appeal upon these principles, in a great number o f cases ; and have been successfully or unsuccessfully attacked, depending on their particular merit in each case. In Patsalides v. Afsharian (supra) for instance, same as in many other cases, civil as well as criminal, findings of the trial Court testing parity oi entirely on the credibility of witnesses, were set aside ou ap­ peal. A n d inferences and conclusions drawn by trial Coiii"t-> were reconsidered in the lighl o\' ciilicism based upon the record. C o m i n g now lo the case in hand, and taking the position from the judgment o f the trial Court, we have before us a claim for £7 500 mils, value oi' two motor car tyres, alleged lo have been sold and delivered to the appellant (defendant in the action) by the respondents ; defended on the allegation that ihe appellant never bought these, or any lyres, f r o m the respondents. The onus lies plainly on the seller-respondents to prove their ease. They called two o f their employees for the pur­ pose But as pointed out d u r i n g the hearing o f the appeal, although the claim was made " on an invoice and/or state­ ment o f account " (vide statement o f claim at p. 4 o f the "record) no such invoice or slulement was produced. The evidence was thai the " original " o f the invoice was prepared and handed lo the buyer ; b u l no copy was produced ; nor was any block which such an invoice c o u l d have come f r o m . 161 THE FIRM " A R M A " TYRtS 1966 • March 17 SOFO< ι is MAMAS P. THE " A R M A " FIRM ΓΥΚΙ-S And there was no suggestion that any statement of account was ever sent to the buyer ; or any debit-note was forwarded to the buyer ; or any correspondence in connection thereto ; or demand for payment ever made before action, which was actually filed more than eighteen monthsafter the alleged sale; and only after the appellant had commenced other procee­ dings against the respondents for the value of goods delivered before the alleged sale of the tyres in questjon. The employees called by the respondents in support of the claim, stated that the appellant signed at their request, two identification slips taken from the tyres, which were in res­ pondents' possession ; and the trial Court granted an ad­ journment to enable them to produce the slips. But no such slips were traced or produced, one of the witnesses stating on the adjourned hearing, that he " was informed that they were thrown away after the defendant was debited " in their books. A ledger was produced, admitted as exhibit 1, where the appellant was shown to owe the respondents £7.500 " under ciedit invoice No. 4104 dated 24/9/63". But as pointed out during the argument, ihe evidential value of such " hear­ say " records, depending on the circumstances in which they are being made and kept, is, as a rule, rather questionable. As lo delivery, which in such claims is a very important matter, one of the employees staled that he delivered two tyros to the other employee (p. 7B of the record). The latter stated that the former look the tyres from the shelf and left them by his desk ; and that the appellant took delivery in his presence (p. 8C). But he did not say how the buyer took delivery of two lyres in such circumstances ; nor could he say who carried them out of the office (p. 8D). Nor was there any attempt to trace such tyres on any vehicle con­ nected with the appellant. Learned counsel for the respondents stated that this was a friendly transaction between persons well knowing one another, and was, therefore, made so informally. The trial Judge, counsel contended, having the advantage of seeing and hearing the witnesses could better assess the value of their evidence ; and make a safer choice between the conflicting versions of the two sides. This is undoubtedly so. But one cannot lose sight of the fact that the seller had the onus cast upon him to prove the 162 1966 claim, befoie he could succeed. And this he tned to do by relying, almost exclusively, on the credibility of his two March 17 employees ; and on an cntiy made later in a ledger. SOFOCLIS MAMAS D. Considered against the foim of ihe claim in respondents' THE FIRM pleading , the absence of the imoitc or any counterpart there- "ARMA" TSRFS of , the absence of any debit-note lo the alleged buyer within a reasonable time, or al all , the absence of any coircspondence in connection thereto , the failure to make any claim, or demand for payment, or mention whatsoever about it for over eighteen months afler the alleged sale, notwithstanding the business connections between the parties , the alleged throwing away of the signed slips which until half-way through the tnal were supposed to be in the possession of ihe respondents , the complete absence of any evidence of delivery 01 transport of the two tyres in question out of respondents' premises , Ihe absence of any attempt to trace such tyres in the possession oi use of the alleged buyer, all these matteis constitute reasons which must take away a great deal of the value of the naked oral evidence of two interested witnesses And to this extent, the reasoning under which * the demeanour of these witnesses in Court" was considered sufficient lo outweigh all that material, and to discharge ihe onus of proof in a case of sale and delivery of ihe two tyres in question, in the circumstances of this case, is, in our unanimous opinion, unsatisfactory ; and the findings of the trial Court, based on such reasoning, must be set aside as not warranted by the evidence considered as a whole The appellant having thus successfully attacked the findings of the trial Court on which the judgment against him rests, is entitled to succeed in his appeal. The judgment of the District Court will be set aside, and will be substituted by a judgment dismissing plaintiff's action with costs here and in the District Court, on the appropriate scale Appeal allowed. Judgment of the District Courtset aside. Substituted by ajudgment dismissing plaintiff's action with costs here and in the District Court. 163