1 C.L.R. 1982 June 1 [HADJIANASTASSIOU, LORIS, PIKIS, JJ.] IOANN1S PAPADOPOULOS, Appellant-Plaintiff' v. DIONYSIOS STAVROU, Respondent-Defendan t. (Civil Appeal No. 6138). 5 10 Findings of fact—Inferences from primary facts—Appeal—Principles on which Court of Appeal interferes with findings of fact made by a trial Court—An appellate tribunal has no justification to interfere with suchfindings unless they are arbitrary or arrived at in disregard to the evidence—Position different with regard to inferencesfrom primary facts where Court of Appeal is in an equally good position to draw such inferences—And therefore there is room for interfering with the inferential findings of the trial Court—Findingschallenged in this case areprimary findings of fact—Adequate reasons given by trial Court for coming to the conclusions it did—Nothing to warrant interference by the Court of Appeal—Appeal dismissed. . This appeal turned on the findings of fact made by the trial Court. 15 20 25 Held, that the ascertainment of the piimary facts of the case is the province of the trial Court, subject always to the rules of evidence and those relating to the burden of proof; that an appellate tribunal has no justification to interfere with the determination by the trial Court and the elemental facts of the case, unlessit appearsthey arearbitrary or arrived at in disregard to the evidence; that the position isdifferent respecting inferences from primary facts; that what inferences may be derived from a given state of facts, is a matter of logic and common sense, founded on the experience of mankind; and in this area an appellate tribunal is in an equally good position to draw inferences and therefore, there is room for interfering with the 321 Papadopoulos v. Stavrou (1SW2) inferential findings of the trial Court, and substitute, where appropriate, its own for those of the court of first instance; that the findings challenged in this case are primary findings of fact; that adequate reasons were given by the trial Court for coming to the conclusions they did; that the evidence of 5 the appellant and his witness was rejected in contrast to that of therespondent;that nothing hasbeen laid or advanced before this Court to warrant its interference on any ground whatever; that, therefore, the appeal must be dismissed (p. 325 post). Appealdismissed. 10 Cases referred to: Patsalides v. Afsharian
(1965)1 C.L.R. 134; Mamas v. The Firm "Arma" Tyres
(1966)1C.L.R. 158; Nearchouv. Papaefstathiou
(1970)1 C.L.R.
- Appeal. Appeal by plaintiff against thejudgment of the District Couit of Limassol (Attemis, D.J.) dated the 31st March, 1980 (Action No. 753/77) whereby his claim for C£14,493.—for the sale of the 1/3 shares in the companies Titan Transport Ltd. and Hermes Safaris Ltd., registered in Zambia was dismissed. V. Harakis, for the appellant. G. Platritis, for the respondent. 15 20 HADJIANASTASSIOU J.: Having heard the address of Mr. Harakis, counsel for the appellant, we consider it unnecessary to call upon the other side to make its address. Pikis, J., will 25 proceed to deliver the judgment of the Court. PIKIS J.: The appellant emigrated to Zambia in 1967 and settled there and became aresident of thecountry until January, 1975, when he was forced to leave, following an order for his deportation. It was the case of the appellant, plaintiff before 30 the Limassol District Court, repeated before us, that soon after being served with the order of deportation requiring him to leave the country within 48 hours, he took urgent steps to make such arrangements, ashecould,for thedisposition ofhisproperty in the country, easing thereby the necessitous circumstances 35 into which he found himself. He contacted the respondent, defendant before the trial Court, his compatriot and a fellow lesident of Zambia, for the purpose of negotiating a deal for 322 1 C.L.R. Papadopoulos v. SUvrou Pikis J. the sale of his property. A meeting was arranged on the day of hisimpending departure, at noon on 5.1.
- The appellant was involved in two tiading companies in association with the Raftopoulos brothers of Greece, then residents of Zambia. 5 Following a brief meeting, it was agreed that, in consideration of leceiving US $45,000.—by the respondent in Cyprus, his shares in the aforementioned companies would be transferred to the respondent. Following the conclusion of their negotiations, they visited the appellant's lawyer, a certain Mr. Ghani, 10 who was instructed to draw up a power of attorney, whereby appellant would authoiize the respondent to act on his behalf in connection with his business, pending the payment of the sale price; thereafter, the arrangement was that the shares would be transferred to the respondent by the appellant. 15 It was a Sunday and as no one was available to type the document, Mr. Ghani undertook to prepare it in due course and forward it to the appellant. Later that day, lie left the country with his wife. So, the agreement between the appellant and the respondent 20 was sealed. It was, according to the version ofthe appellant re-confirmed some time later. It was reaffirmed a few months later, in May, 1975, on a visit of the respondent to Cyprus, subject to ceitain modifications as to price. The respondent made default in the discharge of his contractual obligations, 25 leading to the institution of the present proceedings. Notwithstanding the efforts of the appellant to secure the power of attorney that he allegedly instructed the aforesaid Ghani to prepare, evidenced bycorrespondence with his Zambian lawyer, no such document was furnished to him for leasons appearing 30 in the correspondence between the two. (See, exhibits 5, 6, 7 and 8). Therespondent denied the validity of the casefor the appellant and put forward a different version of events about their relationship. In his contention, news of his impending deportation 35 leaked before service upon the appellant of the order, following the deportation of his partners. His anticipated deportation caused the appellant to act swiftly in order to make arrangements for the disposal of his property in Zambia. A series of meetings were held between the respondent, on 40 the one hand, and the appellant and the representatives of his co-shareholders on the other, culminating in an agreement 323 Pikis J. Papadopoolos τ. Stavrou
(1982)executed on 31.12.1974, evidenced by three documents,notably exhibits 10, 11 and
- Exhibits 11 and 12weie transfer deeds for the transfer of the shaies of the appellant and his partners in the business to the respondent, and exhibit 10 a resolution of the company to that end. In the light of this reality, the 5 respondent maintained before the trial Court that not only the story of the appellant is untrue but, further, that it was, under any circumstances, unthinkable on his part, given the aforementioned agreement,to enter into any otherarrangement with the appellant. When confronted with these documents 10 in cross-examination, the appellant gave an explanation that was found unsatisfactory by the trial Court. Firstly, he dis owned the signature on exhibit
- With regard to the other two documents, while acknowledging his signature, he denied ever writing it for the purpose evidenced therein,maintaining 15 that thedocumentsareforgeries. Hespeculated thatwhat must have happened, is that the documents signed in blank, left in the possession of Ghani, for the purpose of the execution of thepower of attorneywereforged so as tosecure fraudulently that transfer of his shares in the companies of which he was 20 a shareholder. He put forward this veision, notwithstanding his first contentionthat the papers signed in blank, left in the custody of Ghani, were signed at the botton of thepaper. He explained thathe must have subscribed his signature on oneof the blank papers at the top thereof. 25 The trial Court, in a well prepared and duly reasoned judg ment, rejected the version of the appellant and found for the respondent. They found the respondent, as it emerges fiom theii judgment, a credible witness whose evidence was rein forced by the contents of exhibits 10, 11 and
- We were 30 urged on appeal to infer with the findings of the trial Court, on the basis of the principles approved by the SupremeCourt in a number of cases, including the cases of Ioannis Patsalides v. Karabet Afsharian
(1965)1 C.L.R. 134, Sofoclis Mamas v. TheFirm"Arma" Tyres
(1966)l-.C.L.R. 158, and Marikkou 35 Nearchou v. MariaDemetri Papaefstathiou
(1970)1C.L.R. 109. THE PRINCIPLES RELEVANT^ TO INTERFERENCE BY AN APPELLATE COURT WITH THE FINDINGS OF A TRIAL COURT: \ The ascertainment of the primary facts of the case is the 40 324 I CX.R. Papadopoulos τ.Slavrou Pikis J. province of the trial court, subject always to the rules of evidence and thoserelating to theburdenof proof. An appellate tribunal has no justification to interfere with the determination by the trial court and the elemental facts of the case, unless it appears 5 they are arbitrary or arrived at in disregard to theevidence. The position is different respecting inferences from primary facts. What inferences may be derived from a given state of facts, is a matterof logicandcommonsense, founded onthe experience of mankind. In this area, it has been said time and again that 10 an appellate tribunal is in an equally good position to draw inferences; therefore, there is room for interfering with the inferential findings of the trial Court, and substitute, where appropriate, its own for those of the court of first instance. This having been said, it must be emphasized that the dividing 15 line between primary and secondary facts is not always easy and at times veiy difficult to draw. In reviewing the findings and ultimate judgment of the trial court, an appellate court must never overlook thatthetrial court,livingthrough thedrama of a case and following the unfolding of the rival contentions 20 before it, is in a unique position to evaluate the evidence in its proper perspective. The live atmospheie of the trial court is pre-eminently the forum for the elucidation of the evidence and the assessment of its impact. The findings challenged in this case are primary findings of fact. Adequate reasons were given by the Court for coming to the conclusions they did. The evidence of the appellant and his witness was rejected in contrast to that of the respondent. Nothing has been said or advanced before us to warrant our interference on any ground whatever. Therefore, as Hadji30 anastassiou, J. earlier pointed out, we find it unnecessary to call on the respondent. 25 Consequently, the appeal is dismissed with costs. Appeal dismissed with costs. 325