Hannah Wilson Alias Wakjka Gbee & John Lewis Alias Serah [1922] SLCA 11 (14 February 1922)

SOBUMACBER & STRAl])IANl'l v. ·" • ·~· ~ ii /t'ebruary, 1922. 40 HANNAH WU .. SO~ alias WAKJI\A GH.EE - Appellant. v. JOTIN LEWIS alias SERATI - - Respondent. Wrongful admission of ccidence-Object ·ion not mised in Cou1't below- Decision against 1ceigld of e1:idence-Presumption that decision, of Court below 011 facts was right, must be displaced by Appellant. The Court of Appeal refused to review the admissibility of certain documentary evidence, objection to the admission of which had not been taken in the Court below, and held that the Appellant had not satisfied the onus which lay upon him to displace the presumption that the decision of the Court below, on the facts, was right. .Appeal from a judgment o£ Purcell, C.J., in the Supreme Court o£ the Colony of Sierra Leone . . Betts for Appellant cites:- Powell on E>idence, 9th Edition, p. 2-!9. Sec. 16 of the Genernl Registration Ordinance, 1905, (:Yo. 31 of 1905) .1 Sec. 22 of the Supreme Court Ordinance, 1904, (K o. 14 o£ 1904,). 2 1IontgomNie '· Wallace James, L.R. (1904), A.C., p. 73. Graham £or Rco:;pondent cites:- 8 & 9 Viet. c. 13. :\IcDOXNELL, Acting J. In this case three grounds of appeal have been filed-of these three the third has been abandoned and can, in consequence, be ignored. 0£ the other two grounds the first is that the learned Chief Justice in the Court below wrongly received in evidence the office copy of a Deed of Indenture in reference to the property in dispute produced and tendered by the Plaintiff-Arguments were addressed to us by counsel for tl1e Appellant on this point, but I am o£ <>pinion that we are g-o>erned by the ruling of Cottenham, L.C., in the case of Kay v. 1Inrshall, 1 Clark and Finelly, page 261, 8 English Reports, page 102, where he stated that the House 1 Now Cap. 89, sec. 16, Vol. I, p. 683. I Now Cap. 205, sec. 22, Vol. n, p. 1421. c 0 T 3 t b 0 0' 0 ,J to fa th an Of to• AJ m• JT, 41 of I1ords " will not permit parties upon appeal to raise an objec­ " ti.on which they did not think proper to raise before and on "which they did not obtain judgment o£ Court below." The notes of evidence show that the Appellant's counsel objected to the document being received o·wing to there being no notice given to the opposite pady under section 19 of Ordinance 31 of 1905-the General Registration Ordinance, 1905-and that the objection \Yas waived. There is no record on the notes-by which I hold we are bound-of the present objection having also been taken, I am of opinion therefore that thiR ground of appeal must fall to the ground on the authority which I have just cited. The second ground of appeal is that the decision of the trial Judge was contrary to the weight of evide11ce. As to this I would cite the authority o£ Lord El'her, M.R. , in the Colonial ~ecurities Trust Co. 1·. Massey, 65 L .. T. (Q.B.), page 101. "Where a <'nse trie(l by a judge without a jury comes "to the Court of ~ppt>aL tlH• presumption is that the " decision of the Court below on the facts was right and " that presumption must be displaced by the Appellant. " I£ he satisfactorily makes out that the Judge belo\v was " wrong, then, inasmuch as the appeal is in the nature o£ a " rehearing, the decision should be reversed; i£ the case " is left in doubt, it is clear ly the duty o£ the Court of " Appeal not to disturb the decision of the Court below." I can find nothing bere to displacr the presumption referred to nor can it even be said that the casf' is left in any donht. The fact that at the close of the case the learned Chif'f Justice ordered that the whole o£ the papers in the (·ase should be impounded and that the notes of evidence should he fm·warded to the Law Officers of the Crown is n c1C'nr indication of the view which he took of the evidencP given in the Court below on behalf of the AppPllants in this Court and, in this connection, I will cite one more authorih· from the jurl:rment of J..;ord Robc;on in Khoo Sit IToh 1". Lim Thean Ton'! at pagE> :325. I1.R .. Appeal cases. 1912. " The case w'as tried before the Judge alone; it turned " entirely on questions of fact, and there was plain perjury " on one side or the other. Their Lordship's Board are " therefore called upon as were also thr Court of Appeal :: to express an opinion on the credibility of conflicting " witnesses whom they have not seen, heard or questioned. "In coming to a conclnsion on snell an issne their T;or1lships • <t• , .. L .. Sc~IUMAcllllll & ST.RAU~IAN:N - •• 1} • ..vVNXJ:J,L; •ACfiSCI J, 42 " must o£ necessity be greatly influenced h~· lhe opinion of the "learned trial judge, whose judgment i~ itself under review. " He sees the demeanour of the witnesses, and can estimate " their intelligence, position nnd character in a way not " open to the Courts who deal with later stages of the case . " Moreover, in cases lil{e the present where those Courts " haYe onl~- his note of the eYidence to work upon there are " many points which, owing to the brcYity of the note, " may appear to ha-ve been imp<>rfectly or ambiguously dealt " with in the eYidence, and yet were elucidated to the " Judge's satisf:wtion at the triaL either by his own questions " or by the explauatiom; of com1sel given in the presence of " the parties. Of course it may bt> that in deciding between " witnesses he has clearly failed on some point to take ac­ " count of particular circumstances or probabilities materin1 " to an estimate of the e-viden<·e, or has gi,en credence to " testimony, perhaps plausibly put forward, which turns " out on more careful :mahsis to be substantial!;- incon-• . " sistcnt with itself or with indisputable fact, but except in "rare cases o£ that character. cnses whicl1 nre su!'ccptible of " being dealt with wholly by argument, a Court of Appeal "will hesitate long before it disturbs the :findings of a trial "Judge based on \erbal testimony." None of the argument" addres~ecl to us satisfy me that this is one of those rare cases contemplated in that judgment and I eee no reason to ra ,·il at the ron elusion come to upon the e>idence by the learned Chief J ustic·e. I therefore give judgment £or the Respondent with costs. PURCELL, C.J. I agree. S.A WREY-COOKSO~, J. I agree.