pages.gif

At the outset it may be noted that this is a case in which the trial Judge took, the place of a jury. It has been pressed upon the Court that he heard the witnesses, saw them in the witness box, and was thus in a better P9sition to weigh their evidence than this Court. That is perfectly true, and did the decision arrived at by the learned Judge depend solely' on the view of the credibility of the witnesses taken by him this Court should be very slow to interfere.

In the case of The Glannibanta LR. 1 Prob. Div. 283, Baggaley, J. after referring to the great weight due to the decision of a Judge of first instance whenever, in a conflict of testimony, the, demeanour and manner of the witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of their statements, goes on to say " But the parties " to the cause are nevertheless entitled, as well on questions of " fact as on questions of law, to demand the decision of the Court " of Appeal, and that Court cannot excuse itself from the task of "weighing conflicting evidence and drawing Its own inferences " and conclusions, though it should always bear in mind that it " has neither seen nor heard the witnesses ,and should make due " allowance in this respect."

, And when as in this case the decision rests not only on the comparative truthfulness of the statements made by. witnesses, but on its probability, and on the correctness of the conclusions drawn from their evidence by the learned trial .Judge, and above all on the construction put by him on what he describes in his judgment as " a mass of documentary evidence" there is an ample field, apart from that of the credibility of witnesses, in which this Court can exercise an unfettered judgment in coming to the conclusion whether the decision was right or wrong, and if on surveying this field it in fact appears that the probabilities are very strongly on the side of the plaintiff, and that the documentary evidence also is overwhelming in his favour, and if in addition the difficulties raised by the learned Judge against accepting plaintiff's story are capable of a reasonable solution, as they seem to 'me to be, it will, I take it, be the duty of this Court to set aside the judgment of the trial Judge and enter judgment for the plaintiff.

That all these things are so I hope to show.

Now the plaintiff's story, as may be gathered from the judgment of the learned Judge, was that. in July, 1~28, the defendant was in a poverty stricken state, his only material asset being certain lands in Upper Wassaw which he had purchased by auction; that armed with his title deed to these lands he approached the plaintiff, and that the plaintiff thereupon agreed ,to advance him money to develop these lands, the defendant on his side agreeing to hand over half of the produce of the land by way of interest on the money lent.

The learned Judge's comment after setting out these facts is :-" The plaintiff called no witnesses in support of his " contention, and if his account of what took place is true, it seems " to me extraordinary that he, astute business man as hp. claims " to be, should advance these moneys from time to time to a man "whom he knew to be penniless-on no other security than " hypothetical profits of the future-one would have thought he " would have insisted on a mortgage on the property together with " a fixed rate of interest."

Now it is to be noted that while it may be true that plaintiff has no witness to speak as to what took place at the interview when he states he agreed to advance money to defendant-an observation which incidentally applies equally to the defendant-he has produced a mass of evidence in the shape of receipts for the money, as it was advanced from time to time, in which the defendant acknowledges the receipt of the money by way of loan or advances, thereby completely corroborating his story by written admissions of the defendant. I will take a couple of these receipts.

(1)

Dunkwa, 5th Nov~mber, 19B9.

Recpived from Mr. O. H. Reynard of Dunkwa the sum of £25 (Twenty-five pounds) cash as a loan for wages account.

2d. Stamp (Sgd.) W. P. ALLAN.

(2)

Dunkwa, 3rd December, 1929.

Received from Mr. O. H. Reynard at Dunkwa the sum of £27 10s. (Twenty-seven pounds ten shillings) as a loan for payment of November wages.

2d. Stamp (Sgd.) W. P. ALLAN.

3/12/29

Comd there be a more complete corroboration of the plaintiff's case by admission made by defendant? Surely this evidence is better than the evidence of any witness called to depose as to what occurred at an interview, especially as defendant does not allege any witness was present.

Then we have exhibits 4 and 5 which are account'.! stated between the plaintiff and defendant, four covering the period from April 25th, 1929 to November 1st, 1929, and showing a debit balance of £708 18s. 4d., and five that from November 1st, 1929 to April 28th, 1930, showing a debit by the defendant to plaintiff of £890 10s. 8td. at that date. In these statements the defendant is debited with sums paid for wages, tools, food, etc. by the plaintiff. At the end of No. 4 defendant writes: "I the under" signed Wm. P. Allan have examined and checked this statement " of account together with the first three statements and I hereby " certify same to be correct.

"Date 6/11/29. (Sgd.) W. P. Allan",

while there is an almost identical statement signed by the defendant at the foot of Exhibit 5.

To say, in face of documentary evidence such at! these admissions by defendant, that the money has been advanced by plaintiff to him to pay wages, etc. and that he owes all the money, that plaintiff has produced no witness in support of his statement is to my mind irrelevant.

And when in addition it can be demonstrated that all this evidence stands uncontradicted, that the defendant on his side cannot point to a single document in which a payment. by the plaintiff to him is referred to either by the plaintiff or by himself as a payment made to a partnership account, this criticism of the learned Judge seems rather lacking in substance.

Then the learned Judge, after commenting in this wise on the plaintiff's lack of witnesses to support his story, goes on to deal with the probabilities of that story. "If", he says, "his " account of what took place is true it seems to me extraordinary " that he, astute business man as he claims to be should advance " these moneys from time to time to a man whom he knew to be " penniless on no other security than hypothetical profits of the "future. One would have thought he would have insisted on a " mortgage on the property together with a fixed rate of interest."

Now let us examine this statement to see if the criticism is well founded. To do this it seems to me necessary to compare the courses that were open to the plaintiff as the man parting with his money. If we accept his story we have this state of things: defendant is penniless in a sense but he is the owner of a fairly large parcel of land, which has some cocoa growing on it; money advanced to him would be used partly in developing the land and would serve to increase the value of the land, and so there would be a valuable asset belonging to defendant on which plaintiff could come down in case it became necessary to recover his money through the Courts-not so safe security, it is true, as a mortgage but in the ordinary course of things his money ought to be safe enough: in addition he would be getting by way of interest. on the moneys he advanced half of the produce produced on the land, and this might be quite a respectable sum to make the investment from the point of view of profit a better one than a mortgage at fixed rate of interest. As a matter of fact from Exhibits 4 and 5 it appears that plaintiff received as his half share of the produce during the period April, 1929 to April, 1930; the sum of £34 18s. 6d. half of the value of timber sold from the land, plus two sums of £36 16s. and £48 10s. 4id., half of the cocoa sold, a total of £120 4s. IO1/2. in one year, so that it would seem that as an astute business man he was getting a rate of interest on the moneys he was advancing that would make the ordinary capitalist's mouth water, while at the same time his money was most of it going to increase his debtor's assets on which he could fall back if he was not repaid.

Now on the contrary let us suppose the defendant's story to be true, viz: that plaintiff was embarking his money in a cocoa venture and we shall see what this astute business man would be doing. As to the alleged results we know them-the venture is said to have failed utterly so that there are no assets of the partnership left, about which it is even necessary to take accounts, but putting that aside for a moment what is it that the defendant says that plaintiff did? When one hears of a cocoa venture it sounds all right but then it usually refers to a speculator buying a quantity of cocoa in the hope of a rise in the price one can understand that even' an astute business man might embark on such a venture and if there was a loss, well one would say he took his chance and it turned out badly, but this cocoa venture is nothing of that kind. It was, it appears from the account given of it by defendant's counsel, a venture simply to plant cocoa: now when it is remembered that cocoa is an orchard crop, that the trees take four or five years to come into bearing, it is evident that any man who indulges in a speculation of such a kind on his own land, has to wait patiently for four to five years before he can begin to hope' to get any substantial return on his money, and may well be said to be banking on " hypothetical profits of the future ", to use the words of the learned Judge; but when we reflect that in this ease the cocoa was planted on land belonging to another man, that all the capital for planting and more for the defendant's own private use was supplied by plaintiff, that he did all this without getting a half share in the land at least conveyed to him, so as to prevent his alleged partner at the end of four or five years, when he had spent many thousands of pounds on planting cocoa, parting with t.he land with the careless remark, " All right old man, our partner" ship is now at an end, your share is half the profits, you have had " your share of all the profits we have had up to now-Good day!," then we should say that such a venture was not that of an a8tute business man but that of a lunatic. If it is objected that. the picture is overdrawn, and that the plaintiff might look to the value of the cocoa when grown to reimburse him for his speculation, the answer is that the picture I have drawn is exactly the picture of this arrangement put forward by the defendant, and that what I have adumbrated might be done under such an arrangement is exactly what in practice the defendant has done. For although we know that there was enough bearing cocoa on the .place in 1929-30 to give plaintiff the sum of £85 6s. 4id. as his half share of the produce of the estate by way of interest on the advances made by him, and although according to defendant's counsel no less than 400 acres of young cocoa were planted with the moneys advanced by plaintiff, the defendant to-day says there are no assets at all of the partnership-a statement which the learned trial .Judge apparently accepted-and we hear that he has leased the land to a gold mining company for a payment of £3,000 down and £500 per annum rent, and, refuses to pay back the plaintiff one halfpenny of the amount which he says was expended in the partnership venture.

When therefore the learned Judge criticises the plaintiff's story as extraordinary, and his business deal as not of the kind which one would expect from an astute business man since he was relying solely on ., hypothetical profits in the future", I would say that his criticism would be very much to the point if the plaintiff did enter into the arrangement which the defendant contends he did.

Nor is the inference drawn by the learned Judge from the fact that plaintiff kept a book in which he noted down how the advances were spent, to my mind, convincing. the inference that the learned Judge drew was that inasmuch as he busied himself to record how the money was spent, he must have been a partner. The answer of course is: what about the £145 which was not spent upon the estate and which is also noted? and why should not a man who is advancing money to be spent mainly, according to him, in improving a property which is the only thing he has to look to as security for repayment keep a record of how it is spent even if we put aside the possibility that he thought it prudent to have such a record if his friend should hereafter say he had not received the money. I know that the plaintiff said that he looked upon defendant as an honest. man, but after all he might have been ~peaking in a relative sense of honour among thieves. "what brand of honesty the defendant possessed in the opinion of the plaintiff is apparent from a letter dated 19th January, HJ31 (Exhibit 22), in which the plaintiff writes to defendant with reference to a "'possible sale of the land to a mining engineer. "It " is good news what you say about a mining engineer, and I only " hope it will come off-let me know when lie has arrived and "say if you want me to 'salt' the place anywhere." What answer was returned to this' suggestion of the plaintiff" "that the defendant might want him to work a fraud for him we do not know, but that it did not interfere with their friendship is apparent from the correspondence which shows that they were on good terms for a considerable time thereafter.

Again the learned Judge has not given due weight to the correspondence which took place between the parties about the repayment of this money. On 29th .January, 1930, Exhibit ~3, the plaintiff wrote to defendant indicating that he could not advance him any more money and advising him to try to get some of his friends at Sekondi to advance money on loan or for" your share." One would have expected, had he been a partner, that he would have dissolved partnership and come to some arrangements to arrive at the value of the assets-he does nothing of the kind but apparently presses for the return of his money. A$ to ~he use of the words " your share " I shall have something to say later.

Again on 14th .lanuary 1931, defendant writes Exhibit 9;"

Sekondi, 14th January, 1981.

" DEAR.REYNARD,

"I have now heard that a Mining enngineer 'from home is to " prospect and report on the mining possibilities of Jaffa ....

"I am hopeful that his report be favourable. Assuring you that if " this should be the ease my indebtedness to you will have my first " consideration".

, "(Sgd.) W. P. ALLAN".

The defendant was evidently trying to make arrangements to repay to plaintiff the moneys advanced to him-not one' word does he write about accounts not being adjusted in the~ partnership between them: he knows the money the return of which was being claimed-Exhibits 4 and 5 show that.

Then on 29th October, 1931, the plaintiff writes to Mr.

Christian, defendant's solicitor:-

" DEAR MR. CHRISTIAN,

"It is the last thing I would look forward to, you suing me in "Court for the return of your money. I admit yon have been very " patient, and that yon could do more with the cash at present. I am " in no way hedging and am convinced that everything will come out "all right soon.

"(Sgd.) W. P. ALLAN"

Can anyone doubt after reading the correspondence that the situation between the parties was that plaintiff had invested money with defendant by way of a loan, that he was asking defendant to make arrangements to repay him and that defendant was asking him to wait, and he was sure he would be able soon to repay him?

That this is not however the whole situation is true, and the little extra it is which has been the foundation for the case of defendant. The clue to what that little extra was is to be found in the words of Mr. Christian when he writes to plaintiff: "It "is a pity you do not feel inclined because of the general " depression to carry out your original idea of a joint venture." I construe these words to mean that when plaintiff came to the succour of defendant when he was starving and advanced him money, £145 at least of which was used for his own private purposes and the rest to develop his land by planting cocoa, one of the inducements held out to plaintiff must have been a possible future partnership in the estate.. Since the very foundation of such a venture as I have pointed out for anyone putting his money into cocoa planting would necessarily be an interest in the land on which it was planted it follows that a necessary preliminary step in the constituting of such a partnership would. be a deed of conveyance of an interest in the land to the plaintiff. This was never done nor did plaintiff at any time suggest it should be, nor does he at any time ever suggest he owns an equity in the land: on the contrary right through it will be seen from the correspondence defendant is acknowledged as the sole owner of the land (offers to buy are to him alone), and plaintiff, the alleged partner, does not venture to allow one pod of ripe cocoa to be plucked without express permission from defendant. The idea of partnership therefore was never carried out, it stopped at defendant getting a half share of the profits of the estate from cocoa already planted and from timber growing on the estate by way of interest for his money, and no provision at all and no arrangement was entered into with respect to the profits derived from planting the 400 additional acres of cocoa.

The learned .Judge has found that a written contract of the partnership was to be drawn up. It is strange, if in fact a real partnership agreement was arrived at, that this was never done and that there is nowhere any mention made of such a contract. That the plaintiff talked of himself to Yusulin as a partner and referred in the letter Exhibit 23 of 29th January, 1930, to " your share" was in my opinion due to his treating as existing something that did not exist but which it was contemplated might at some time come into existence. "\Whatever may have been intended however

there cannot be the smallest doubt that when plaintiff said he could advance no more money and asked for the return of what he had lent, both ·parties treated the alleged partnership as not being in existence-the plaintiff right through made his advances as loam and defendant acknowledged them as such, and when he asked for the return of his moneys defendant never made the slightest suggestion that that money was not by way of loan, but asked for time to pay his debt acknowledging that plaintiff had been very patient in waiting on him.

When plaintiff moreover spoke of himself to Yusulin as a partner it is to be remembered that he had this much justification, viz: that he was actually getting a half share of the produce of the estate and to that extent was a partner, while when he advised the defendant to raise money from his friends either on loan or on " your share ., he might very well have meant to say, " you might " get some one else to carryon in my place on the same terms you " have offered to me."

That the partnership never went beyond an offer I am convinced from the documents in the case and from the conduct of the parties, which I have already referred to and also because defendant has disposed of the property without any reference to plaintiff while plaintiff has made no attempt to stop him. If in fact plaintiff believed that he had a half share in this estate, I cannot doubt that he would have seized the opportunity to claim his half of what has turned out to be so valuable: if defendant had believed that plaintiff could stop him from dealing with the land, he would have been glad to pay him off the £945 he had advanced on it.

I think, looking at the evidence as a whole, that plaintiff is entitled to judgment. The judgment therefore of the Court below should be set aside and judgment entered for the plaintiff on the claim for £945 17s. 8d. with costs in this Court and in fie Court below. 'the £145 paid into Court and paid out to plaintiff to go in part satisfaction of the judgment.

Costs in this Court assessed at £35.

KINGDON, C .• L, NIGERIA.

This is an appeal against the judgment of the Divisional Court sitting at Sekondi. The claim was for £945 17s. Sd. for cash alleged to have been advanced by plaintiff to defendant on various dates from July 1st, 1928 to .July 3rd, 1930, at defendant's request as against receipts, vouchers and accounts. The defendant admitted that £145 was so advanced, and paid that amount into Court, leaving the sum of £800 17s. 8d. in dispute.

The defence set up was that a verbal contract of partnership was entered into between the parties in July, 1928, whereby the plaintiff should provide money to plant and develop a cocoa plantation on land belonging to defendant. The defendant was to give his time wholly to supervising the venture; and they were to share equally any profits or losses arising out of it; that each party carried out his part of the bargain, the defendant went and lived on the plantation and gave his whole time to supervising the work of clearing the land and planting cocoa, whilst the plaintiff provided from time to time such funds as were required to pay the labourers' wages and meet the other incidental expenses of the venture. But that inexperience led to failure, the project. was launched on far too extensive a scale with the result that when a large area had been cleared and planted it could not be maintained, so that all the young cocoa' trees died and the land returned to its original state. Thus everything was lost; the plaintiff lost the £800 17s. 8d. he had put in, and the defendant lost all the work he had put in.

At the trial the defendant does not seem to have suggested that these respective losses balanced each other so that there was nothing (h1e by him to plaintiff. He seems on the contrary to have been willing to refund half the actual loss after it had been ascertained by a referee, and before this Court, after first seeking to uphold the judgment given, he made, at the eleventh hour, practically the same offer, viz: to pay half the amount of £800 l7s. 8d. claimed. But the learned trial Judge, possibly· thinking that the question of a refund as between partners did not arise on the claim as framed, ignored this aspect of the case, found in favour of the partnership agreement as set up by defendant, and gave judgment for defendant on the claim for £800 17s. 8d.

The plaintiff now appeals on two grounds; the first is merely' "error in la w." As to this, his counsel explains that lie is claiming" that, if the story of the defendant as to the partnership is accepted, judgment should have been entered ordering an account to be taken between the parties. Since this appears to be exactly what the defendant asked for through his counsel in the Court. below, it seems that it would be difficult for this Court to resist the justness of the claim, if it. were to uphold the finding that there was a partnership. But since, in my opinion, that finding should not be upheld, the question of what order should be made if it were, does not actually arise. This brings me to the second ground of appeal, viz :-" Judgment against the weight of "evidence, of intention of both parties, by disregard of "documentary evidence." '1'his really is that the judgment upholding the story of the partnership agreement was against the weight of evidence. The evidence in this case is partly oral and partly documentary, the determination of the action depends partly on judging the respective veracity of the witnesses and partly on making the correct deductions from the· documents. Admittedly the Court below was the better judge as to the credibility of the witnesses, and since it gave credence to defendant and his witness and not to .the plaintiff, that fact must. be given due weight and I have not. overlooked it.. On the other hand this Court is in just as good a position ~s the Court below in the matter of drawing the proper inference from the documents' and if it forms the conclusion that the documents establish the truth of the plaintiff's contention, it is its duty to give effect to that conclusion.

An examination of the documents reveals that, whereas a number of them point some one way, some the other, but not conclusively, there are three which to my mind clinch the matter absolutely and prove to the hilt the falsity of the defendant's story of a partnership.

Dealing first with what I may call the inconclusive pointers.

The strongest' in favour of the defendant is the letter to him from plaintiff dated 29th June, 1930, in which there occurs the passage quoted in the judgment of the Court below:-

. " Of course- you have many friends left at Seccondee and " some of them may be able to find some money for you either " on loan or for your share."

The defendant, of course, suggests that the reference to " your share" shows that each party had a share and consequently there was a partnership. Since the plaintiff could give no other reasonable explanation of these words, the trial Judge very properly attached great weight to them. But I do not regard them as conclusive. The" share" might refer either to a half share of further sales of produce, or to the defendant's share of the proceeds of a possible sale of the plantation, such share being what would be left of the purchase price, after repaying to plaintiff the money loaned by him. Another point to which considerable, and as I think undue, importance was attached by the trial Judge in defendant's favour was the entries on the credit side of the account book (Exhibit 21) of certain items showing that the plaintiff received a half share of the net proceeds of the sale of some cocoa and timber. I think that the plaintiff gives a satisfactory explanation of this to the effect that it was agreed between them that he should receive half the proceeds of such sales by way of interest. This does not necessarily connote a partnership.

A further point made in defendant's favour is that the same account book and many of the. receipts signed by defendant set out the specific purposes for which the money was provided. Why, it is asked, should the plaintiff take such meticulous interest in how the monies were spent if, as plaintiff contends, they were merely lent? The answer is that, since the plaintiff was lending money for a specific purpose, it was not unnatural that he should wish to make sure that· the money was spent for that purpose and should make a record of what it was.

These receipts tell equally strongly the other way, for in many of them the transaction is expressly described as a loan. Moreover they are signed over a two pence stamp. Why a stamped receipt for money changing hands. as between partners to be used for partnership purposes? But though this point is in favour of plaintiff I do not regard it as conclusive. Another, but not conclusive, point in plaintiff's favour is that it is obvious from the documents that both he and defendant throughout regarded the property in the estate as remaining exclusively in the defendant, and it is alleged by plaintiff, and not disputed by defendant, that defendant has now sold the property. If _ there were really a partnership it seems inconceivable that it should not have been a term thereof that the plaintiff should have some sort of interest in the land into which he was putting his money, and at any rate, that it should not be sold without either his consent or his being refunded his capital out of the proceeds. I now come to the three documents which I have described above as to my mind clinching the matter. The first is the letter (Exhibit 9) written by defendant to plaintiff on the 14tp. January, 1931, and the others are the two letters (Exhibits 16 and 27) written within three nays of each other, the first dated 4th December, 1931, and written by defendant to plaintiff, and the second dated 7th December, 1931, and written by defendant's solicitor to plaintiff.

In Exhibit 9 the defendant writes:-

"I have now heard that a Mining Engineer from home is to " prospect and report on the mining possibilities of Jaffa. He should " be on this property in a few months time. And I am hopeful that "his report be favourable. Assuring you that if this should be the "case my indebtedness to you will have my first consideration."

In EX'hibit 16 the defendant writes:-

"It is the last thing I would look forward _ to, you suing me in "Court for the return of your money. I admit you have been very " patient and that you could do more with the cash at present. I am " in no way hedging and am convinced that everything will come out " all right soon."

In Exhibit 27, Mr.Ohristian (defendant's solicitor, who was also his counsel at the trial and before this Court) after referring to the property as "Mr. Allan's Dominaku Concession," goes on:-

" I hope therefore if you want to be repaid the money you invested " with Allan on the property that you will wait, for what is the use of " either of you sacrificing It by putting it up at auction which is bound " to be the case unless you wait ..

I t appears to me that no amount of argument or explanation can get round these letters and that they prove conclusively the truth of the plaintiff's case and the dishonesty of the defence now