The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 50 of 1996

 

C.F.A.O. (Gambia) Limited Appellant

v.

Alhagy Amadou Taal Respondent

 

FROM

 

THE COURT OF APPEAL OF THE GAMBIA

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 6th February 1997

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Present at the hearing:-

Lord Browne-Wilkinson

Lord Mustill

Lord Lloyd of Berwick

Lord Steyn

Lord Hutton

  ·[Delivered by Lord Hutton]

 

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The respondent, Mr. Alhagy Amadou Taal, entered the employment of the appellant in 1952.  During his years of employment with the appellant until 1984 he was employed under a contract which was terminable by the appellant on one month's notice or payment of one month's salary in lieu of notice.  There was a retirement age of 55 years but some members of the staff were requested by the appellant to continue working after they had reached the age of 55 years and a number continued working after they had attained the age of 60 years. 

 

1. The respondent became 55 years of age in 1984.  The claim made by him was that soon after he became 55 the appellant's Manager, Mr. Querbe, verbally requested him to stay on until he was 60 because of his experience and his good relations with the public, and he agreed to do so.  However, about March 1986 Mr. Querbe told him that he wanted him to retire and he was sent a written notice from the appellant dated 26th March 1986 stating that as he had reached the prescribed age of retirement (55 years) he  would  retire  from the company's service with effect from 1st April 1986, and he would be paid six months' salary as a gratuity.  It appears that the respondent continued to work with the appellant until December 1986 to enable the appellant to calculate the pension to which he was entitled. 

 

2. The respondent brought an action in the Supreme Court of The Gambia for damages for wrongful termination of his contract of employment.  The learned trial judge, Njie J., dismissed his claim.  On appeal the Court of Appeal of The Gambia reversed the decision of the learned trial judge and awarded damages against the appellant "for breach of the five year contract of employment entered into in 1984".  The appellant now appeals to their Lordships against that decision.

 

3. At the trial before Njie J. two witnesses gave evidence.  The respondent, Mr. Taal, gave evidence, and the only witness for the appellant was its administrative manager and senior accountant, Mr. Charles Ellis.

 

4. The learned trial judge dismissed the respondent's claim for breach of contract on two main grounds.  The first ground was that he considered that where an employer could terminate the contract of an employee on one month's notice prior to his attaining the retirement age of 55 years, it was improbable that the employer would then contract to retain the employee in employment for a fixed term of five years.  The judge said:-

"For all the years he worked prior to his attainment of what he called the compulsory retiring age of 55 years his employment with the company could be determined by either party upon a month's notice.  Is it likely that thereafter he could be asked to stay for a fixed term of five years.  I think not."

 

5. The second ground was that, having seen and heard the respondent in the witness box, the judge did not believe him.  He said:-

"It seems to me that plaintiff became unhappy when he realised and probably felt singled out that other employees continued to work for the company well after he attained the retiring age.  But he was wrong.  Ousainou Omar and Ebou Ceesay had been retired.  ...  This was nothing more than a gold digging exercise.  I do not believe the plaintiff was told by Mr. Querbe or any one else that he could continue to work for the company until he attained 60 years."

 

 

 In the Court of Appeal judgment was delivered by Francois J.A.  The two other members of the Court concurred with the judgment.  The Court of Appeal were critical of the judgment of the trial judge on a number of grounds.  Having considered those criticisms their Lordships are unable, with respect, to agree with them, and for the reasons which they now state they consider that the decision of the trial judge should not have been reversed.

In relation to the finding of the trial judge as to the improbability of the agreement claimed by the respondent, Francois J.A. said:-

"The doubts the Learned Judge expressed as to an agreement for a fixed term of 5 years can be equally balanced by the absurdity of an extension without any certainty as to limits, especially where earnings were to cease." 

Their Lordships are unable to accept this ground for rejecting the reasoning of the trial judge.  This was a case where, during the many years when he was employed by the appellant before attaining the age of 55 years, the respondent's employment could have been terminated on one month's notice.  Therefore there was nothing absurd or improbable in the respondent agreeing to continue to work after the age of 55 on the same terms as before.  Francois J.A. stated the principles which should guide an appellate court in considering findings of fact by the trial judge who has the advantage of seeing and hearing the witnesses give their evidence.  He said:-

"An appeal is a rehearing, both on the facts and the law, and the appellate court must review the entire case, including the findings on primary facts and inferences arising therefrom.  The appellate court generally approaches findings of fact of the trial court with caution and does not disturb them lightly.  And on issues of credibility, the disadvantage of an appellate court not having heard or seen witnesses is translated into a forbearance to interfere except in the plainest of cases.  See Khoo Sit Hoh v. Lim Thean Tong [1912] AC 323.  However, if the trial court's findings are unsatisfactory, even on the issue of credibility, and demonstrate that the Trial Judge has not taken proper advantage of seeing the witnesses who appeared before him, the appellate court should not shrink from reversing him.  See per Lord Thankerton in Watt v. Thomas [1947] A.C. 484, 488, and Evans v. Bartlam [1937] A.C. 473, 486.

Where the issue relates only to the proper inference to be drawn from facts which are not in doubt or from documents which are not disputed, the appellate court is in as good a position to decide the issue as the Trial Judge.  See Powell v. Streatham Manor Nursing Home [1935] A.C. 243." However, notwithstanding the trial judge's assessment of the respondent as a witness whose evidence he did not believe, the Court of Appeal reversed his decision and Francois J.A. stated:-

"It is clear on an application of the law to this matter that the Trial Judge's evaluation of the primary facts was erroneous.  There was no evidential support for his condemnation of the appellant as a gold digger on a gold extracting exercise.  The Learned Judge had no basis for discrediting the appellant, it was clearly an issue of oath against oath with the appellant securing an edge because of the respondents' failure to answer the point of substance as to the limit of the agreed extension either on the pleadings or by credible evidence."

 

In Powell v. Streatham Manor Nursing Home [1935] A.C. 243 at pages 249-251 Viscount Sankey L.C. stated:-

"On an appeal against a judgment of a judge sitting alone, the Court of Appeal will not set aside the judgment unless the appellant satisfies the court that the judge was wrong and that his decision ought to have been the other way.  Where there has been a conflict of evidence the Court of Appeal will have special regard to the fact that the judge saw the witnesses: see Clarke v. Edinburgh Tramways Co., per Lord Shaw 1919 S.C.(H.L.) 35, 36, where he says:-

 

`When a judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not.  I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the Judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another.  But that is not the ordinary case of a cause in a Court of justice.  In Courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page.  What in such circumstances, thus psychologically put, is the duty of an appellate Court?  In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I -  who sit here without those advantages, sometimes  broad  and  sometimes  subtle,  which  are the privilege of the Judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong?  If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.' ...

 

6. The judge of first instance is not the possessor of infallibility and, like other tribunals, there may be occasions when he goes wrong on a question of fact; but first and last and all the time, he has the great advantage, which is denied to the Court of Appeal, of seeing the witnesses and watching their demeanour."

 

7. Viscount Sankey's observations were directed to a case where a judge hears a number of witnesses who give conflicting evidence, but his remarks are also applicable to a case, such as this, where the judge disbelieves the evidence of the plaintiff, even though there is no opposing witness called who directly contradicts his evidence of the alleged verbal agreement.  Accordingly, having regard to the observations made by Viscount Sankey their Lordships consider that the Court of Appeal should not have rejected the trial judge's assessment of the credibility of the respondent. 

 

8. It appears from the passage in the judgment of Francois J.A. set out above that the Court of Appeal were also influenced by the consideration that the appellant did not call Mr. Querbe to challenge the respondent's account of the conversation in which he claimed he was asked to stay on in employment beyond the normal retiring age of 55 years until he was 60, and Francois J.A. also stated in his judgment:-

"With the failure of one of the parties to the conversation (Mr. Querbe) to give evidence, the issue of credibility was at large and there was no basis whatsoever for describing the appellant's claim as a `gold digging exercise'. ...

 

9. The basis of the Learned Judge's disbelief of the appellant is completely undermined by the lack of evidence in support either from the respondents or other material.  The assumptions of the Learned Judge, remain mere assumptions without any legal basis."

 

10. The failure of one party to call a witness who could give evidence to dispute the account of the other party may, depending on the particular circumstances, strengthen that other party's case.  But in this case, where the trial judge did not believe the account of the new contract given by the respondent and   where   that  account  was,  in  itself,  improbable,  their Lordships consider that the absence of Mr. Querbe from the witness box did not undermine the defence of the appellant.  In Reg. v. Inland Revenue Commissioners Ex parte Coombs & Co. [1991] 2 A.C. 283 at page 300 Lord Lowry stated:-

"In our legal system generally, the silence of one party in face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence.  Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case.  But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party, may be either reduced or nullified."

 

11. In this case counsel for the appellant informed the trial judge that Mr. Querbe was not in the jurisdiction, and the judge appears to have accepted the truth of this statement.  Therefore it appears that there was a credible explanation for the absence of Mr. Querbe so that, in the particular circumstances of this case to which their Lordships have referred, the fact that he was not called as a witness did not materially strengthen the respondent's case.

 

12. The Court of Appeal also considered that the defence of the appellant was pleaded in an evasive way, and it is therefore appropriate to set out certain paragraphs.  Paragraphs 2, 3 and 4 of the statement of claim were as follows:-

"2.The defendants are a company registered in The Gambia.  The plaintiff was in their employ since 1952.

 

3.In about 1984/85 the defendant present Manager specifically requested the plaintiff who had then reached the retirement age of 55 years to continue in the defendants employment until the plaintiff reached the age of 60 years.

 

4.The defendant said Manager made the said request because he need the assistance and guidance and help of long serving servant of the defendants such as the plaintiff to help him settle down to the said office of Manager to which he had just succeeded from the previous incumbent of 30 years standing."

 

13. Paragraphs 2, 3, 4 and 5 of the defence were as follows:-

"2.As regards the statements contained in paragraph 3 of the statement  of  claim  the  defendants  will  say  that the plaintiff was requested to continue to work after attaining the age of 55 years but that there was no indication or suggestion by the Manager that he will continue to work till he attained 60 years of age.

 

3.The contents of paragraph 4 of the statement of claim are denied save that the chairman had taken over from the previous chairman.

 

4.The defendants deny that the plaintiff had agreed with the defendant's Manager orally or otherwise that the plaintiff will continue to work till he attains 60 years of age.

 

5.The defendants admit that in 1986 the plaintiff retired when he was about 56 years old but deny that the plaintiff was retired in breach of any oral agreement.  The defendant gave to the plaintiff three months notice of termination of the employment agreement."

 

14. Francois J.A. stated:-

"I find this defence evasive.  It does not state for how long the appellant was to continue in office after attaining 55, on the new contractual arrangement.  Having admitted that the appellant was to continue in office after attaining 55, which was a confession, the proper avoidance was to state when it would expire.  That should not be left suspended in the air."

 

15. Their Lordships, with respect, do not take this view.  Paragraphs 2, 4 and 5 of the defence in their Lordships' opinion make it clear that the defence advanced by the appellant was that the respondent was requested to continue to work after attaining the age of 55 years, but that there was no agreement that he would continue to work until he attained the age of 60 years, and therefore it was stated by sufficiently clear implication that the respondent was employed after the age of 55 on the same terms as before, namely that his employment could be terminated at any time on one month's notice.

 

16. In their Lordships' opinion and for the reasons which they have given this was a case where the Court of Appeal should not have reversed the decision of the trial judge.  Their Lordships accordingly allow the appeal, set aside the judgment and order of the Court of Appeal and restore the decision of the trial judge.  The appellant is entitled to its costs in the Court of Appeal.  There will be no order for costs before their Lordships' Board.

 

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