164-NLR-NLR-V-48-GRAND-CENTRAL-RUBBER-ESTATES-LTD-.-Appellant-and-ROMPI-SINGHORespondent.pdf
CANEKERATNE J.—Grand Central Rubber Estates, Ltd. v. Rompi Singho. 525
1947Present: Canekeratne and Dias JJ.
GRAND CENTRAL RUBBER ESTATES, LTD., Appellant,and ROMPI SINGHO, Respondent.
S. C. 434-435—D. C. Ratnapura, 8,036
Witness—Credibility of —Examination at length by trial Judge—Weight to beattached to his finding.
Where a trial Judge himself examined witnesses at some length afterre-examination and then rejected their evidence on the ground ofcontradictions—
Held, that in the circumstances it was not possible to attach weightto the views of the Judge as to their credibility.
^^PPEAL from a judgment of the District Judge of Ratnapura.
H. W. Thambiah, for the defendant, appellant.
Colvin R. de Silva, for the plaintiff, respondent.
September 29, 1947. Canekeratne J.—
This is an appeal from a judgment of the District Judge of Ratnapura,pfonounced in favour of the plaintiff in an action brought by him for theTecovery of a sum of Rs. 275 as damages for wrongful dismissal andRs. 600 damages sustained by the wrongful transfer of the plaintiff’slabourers. The defence was that the plaintiff left the services of the
528 CANEKERATNE J.—Grand Central Rubber Estates, Ltd. v. Rompi Singho
first defendant of his own free will. The main question was whether theplaintiff was instructed to cease work entirely or to take over the weedingsection. The determination of this question depends on the testimonyof the plaintiff and of the conductor. The second defendant testifiedthat he instructed the conductor of the estate in writing to send theplaintiff to the weeding field towards the end of January. The Judgeappears to accept this part of the evidence. The conductor in his evidencestated that he got instructions in writing from the second defendant andlater told the plaintiff that he should stop work in the tapping field andtake over the weeding section. What the Judge’s finding on this evidenceamounts to is this—that the conductor changed the message he receivedfrom the superintendent and told the plaintiff something entirelydifferent; this was done apparently for no valid reason. There isevidence to show that it was usual for a kangany to be put into variousfields.
The plaintiff was represented at the trial by counsel from Colombo(Mr. K. C. Nadarajah). Tpie first defendant and the second defendantwere represented by proctors of that court. The plaintiff gave evidenceand called two witnesses. The Judge put no questions to the plaintiff orhis witnesses. The second defendant gave evidence and was cross-examined by counsel for the plaintiff and was then re-examined. TheJudge then started examining him and his examination covers one pageand six lines of the typescript, while the cross-examination took one pageand two lines of the typescript. The next witness was the conductor.After the cross-examination and the re-examination the Judge took thiswitness in hand and his examination covers a little over one and halfpages of the typescript. The conductor’s cross-examination covers alittle over one page of the typescript. The Judge who was the solejudge of facts accepted the evidence of the plaintiff and rejected theevidence of the conductor principally because of the contradictions in hisevidence. The contradictory answers were elicited by the Judge himselfin the course of a prolonged examination of the witness in which some-times the same question was asked more than once—answers obtained inone or two places by, as he himselff states, “ pressing the witness further ”.It may not be undesirable in dealing with this case to refer to the followingpassage from the judgment of a Court of Appeal in England. Yuill v.Yuill, 1944, reported on page 102 of the 29 C. L. W.
-“A judge who observes the demeanour of the witnesses while theyare being examined by counsel has from his detached position a muchmore favourable opportunity of forming a just appreciation than ajudge who himself conducts the examination. If he takes the lattercourse he, so to speak, descends into the arena and is liable to have hisvision clouded by the dust of the conflict. Unconsciously he depriveshimself of the advantage of calm and dispassionate observation. It isfurther to be remarked as everyone who had experience of thesematters knows that the demeanour of a witness is apt to vary when heis being questioned by the Judge particularly when the judge’sexamination is, as it was in the present case, prolonged and coverspractically the whole of the crucial matters which are in issue.”
527
Gunapalee v. Joranis Appuhamy.
A judge is entitled to put questions and invariably would do so whereit is necessary to clear up anything that is left indefinite, or indistinct, ornot well explained.
The trial in this case is a very unsatisfactory one and it is a matter ofregret that the Judge should have conceived himself justified in adoptingthe course he took in this trial. In these circumstances it is not possible toattach weight to the views of the judge as regards the credibility of thewitnesses.
One course open to us is to examine the evidence afresh and come to adecision on the facts. The other is to send the case back for a re-trial.It seems fairer to the parties to adopt the latter course.
The result will be that the action will come on for trial anew and in thesecircumstances it is desirable that the Court should confine its opinionstrictly to the requirements of the appeal so as not to prejudice the casecf either party, at the trial. The judgment of the trial judge is setaside and the case will go back for trial by another judge. The costs ofthe proceedings in the Court below and of the appeal will be costs in thecause.
Dias J.—I agree.
Sent back for re-trial.