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FUAD GABRIEL NOUJAIM
V.
RASHID ALY
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT BATHURST, THE GAMBIA
19TH DAY OF DECEMBER, 1953
APPEAL NO. 2/53
2PLR/1953/56 (WACA)
OTHER CITATION(S)
2PLR/1953/56 (WACA)
(1953) XIV WACA PP. 400-402
LEX (1953) – XIV WACA 400-402
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
MILES, J.
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BETWEEN:
FUAD GABRIEL NOUJAIM (ADMINISTRATOR OF THE ESTATE OF PAUL NOUJAIM, DECEASED) – Appellant
AND
RASHID ALY – Respondent
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ORIGINATINGCOURT(S)
Appeal by the defendant against judgment of Ames, J., in the Supreme Court of the Colony of the Gambia
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REPRESENTATION
E. E. Hammond-Laing — for the Appellant
P. S. N’Jie — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Administrator agreeing to amount of deceased’s indebtedness — An agreement inter vivos — Rule on claims against estates — Whether not applicable.
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PRACTICE AND PROCEDURE ISS(S)
APPEAL:- Appeals in Civil Cases — Finding of fact — Onus on appellant to show the finding was wrong.
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CASE SUMMARY
The respondent traded on his own account and was also the manager of a firm and a partner in it. The appellant was the administrator of the estate of a deceased person. The respondent in his private capacity, and his’ firm also, had dealings with the deceased. Meetings between the administrator and the respondent resulted in the administrator signing a promissory note for the amount owing to the respondent himself, who sued for the balance due on the note. The administrator’s defence was that he had made certain payments to the respondent towards his personal promissory note but the latter credited some to the deceased’s debt to the firm for the reason that this debt was agreed at a certain sum on condition that the firm should return sundry goods supplied by the administrator to the firm. The respondent said that that sum was an agreed balance after credits having been allowed and that there was no such condition as alleged. The trial Judge accepted the evidence of the respondent and found that the agreement on the sum due to the firm had been unconditional, and gave judgment for the respondent-plaintiff for the balance due on his note.
In the administrator’s appeal (1) the findings were attacked and (2) it was also argued that on principle a claim against an estate could not succeed where it was simply a question of oath against oath.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
(1) The issue was purely one of fact and the case turned on the conflicting testimony of witnesses whom the trial Judge had the advantage of seeing; the onus was on the appellant to show that the Judge’s decision was wrong, but this onus the appellant failed to discharge.
(2) The principle invoked had no application to the case since the agreement relied upon by the respondent was an agreement inter vivos between him and the appellant as administrator of the estate.
Case cited on (1):-
Powell and Wife v. Streatham Manor Nursing Home, 1935, A.C. 243.
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MAIN JUDGMENT
The following Judgment was delivered:
MILES, J.
This is an appeal by the defendant from a judgment of Ames, J., in the Supreme Court of the Colony of the Gambia.
The action was brought by the respondent Rashid Aly against the appellant, Fuad Gabriel Noujaim as Administrator of the Estate of Paul Noujaim, deceased, and the claim was for £2,032 1s. 10d., being the balance due on a promissory note dated the 24th May, 1948.
The respondent was the manager of Ali Suleiman & Co., Merchants of Bissau, Portuguese Guinea and since 1949 had been a partner. He was a merchant trading on his account.
Both the respondent, in his private capacity, and the firm of Ali Suleiman & Co. had commercial transactions with the late Paul Noujaim.
Paul Noujaim died in January, 1948. The appellant, who is his brother, formerly lived in Dakar but shortly after his death came to Bathurst and together with another brother obtained letters of administration of the estate.
After the death of Paul Noujaim claims were made against the estate both by the respondent in bis private capacity and by the firm of Ali Suleiman & Co.
In May, 1948, there were meetings between the appellant and respondent in connection with both claims which had been disputed because of the inadequacy of the records kept by the deceased.
The result was that so far as the respondent’s own claim was concerned the appellant signed the promissory note in question.
According to the respondent, during these meetings the amount due from the estate to Ali Suleiman & Co. was agreed as £1,800. It is on the question of this alleged agreement that the main dispute centred at the trial.
The substantial defence was that the appellant had made various payments to the respondent and not ‘to Ali Suleiman & Co. towards payment of the balance due under the promissory note but that the respondent appropriated and credited some of those to Ali Suleiman & Co. The alleged reason for this was that the respondent knew that there had been no unconditional agreement that the estate should pay £1,800 to Ali Suleiman & Co. and accordingly not until enough had been appropriated to Ali Suleiman’s account to discharge the indebtedness were payments credited to the respondent’s private account. Another defence was that in February of this year the respondent accepted a sum of £1,200 11s. 2d. in full settlement of his claim. This was not pursued at the hearing of the appeal. The substantial ground of appeal was that there was no evidence to support the learned trial Judge’s finding that the appellant admitted owing the sum of £1,800 to Ali Suleiman & Co.
The appellant in evidence stated that the agreement with regard to the £1,800 was conditional upon the return by Ali Suleiman & Co. of 40 tyres and various other articles which had been supplied to them by the appellant. He said that he made no distinction between the respondent and Ali Suleiman & Co. The respondent’s evidence was that the £1,800 was an agreed balance due after crediting certain payments and that there was no such condition as had been alleged by the appellant.
Certain letters were referred to which it was suggested supported the appellant’s case that the tyres, etc., had been supplied to the respondent. It was also argued that had there been an agreed debt of £1,800 due to Ali Suleiman & Co. a promissory note would have been signed as had been done in the case of the respondent’s private claim.
The learned trial Judge after hearing the evidence and considering all these matters accepted the evidence of the respondent and rejected that of the appellant and he found that the agreement as to the sum of £1,800 being due to Ali Suleiman & Co. was unconditional.
The principles which should guide an Appellate Court in hearing an appeal from the decision of a Judge sitting without a jury where the matter in question is matter of fact were considered in Powell and Wife v. Strealham Manor Nursing Home, 1935 A.C. 243. In that case Lord Atkin said at page 255, “The Court has to rehear, in other words has the same right to come to decisions on the issues of fact as well as law, as the trial Judge. But the Court is still a Court of Appeal and in exercising its functions is subject to the inevitable qualifications of that position. It must recognise the onus upon the appellant to satisfy it that the decision below is wrong: It must recognise the essential advantage of the trial Judge in seeing the witnesses and watching their demeanour. In cases which tum on the conflicting testimony of witnesses and the belief to be reposed in them an appellate Court can never recapture the initial advantage of the Judge who saw and believed”.
The issue in this case was purely one of fact. I have not had the advantage which the learned trial Judge had in seeing the witnesses and I am of opinion that the appellant has failed to discharge the onus resting on him to satisfy me that the decision was wrong.
It appears to me that the true view with regard to the transaction of the tyres was that if it created any liability at all on the part of Ali Suleiman & Co. it gave the appellant a set off against their claim. I find it difficult to understand why, if there was no debt due to Ali Suleiman & Co. the appellant should have agreed to pay the £1,800 whether conditionally or otherwise.
Finally, I would observe that the principle relied upon by learned counsel for the appellant that a claim against an estate cannot succeed where it is simply a question of oath against oath has no application to the present case since the agreement relied upon by the respondent was an agreement inter vivos between the respondent and the appellant as administrator of the estate. For these reasons the appeal fails and is dismissed with costs to be taxed.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J. A.
I concur.
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Appeal dismissed.