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 is. 10d., being the balance due on a promissory note dated the 24th May, 1948.
The respondent was the manager of Ali Suleiman and 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 and 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 his private capacity and by the firm of Ali Suleiman and 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 and 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 and Co. towards payment of the balance due under the promissory note but that the respondent appropriated and credited some of those to Ali Suleiman and 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 and 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 and Co.
The appellant in evidence stated that the agreement with regard to the £1,800 was conditional upon the return by Ali Suleiman and 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 and 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 and 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 and 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. Streatham 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, of fact as well as law, as the trial Judge. But the Court is still a Court 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 turn on the conflicting testimony of witnesses and the belief to be reposed
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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 and 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 and 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.
Foster-Sutton, P. I concur. Coussey, J.A. I concur.
Appeal dismissed.