[1938] EACA 16

## COURT OF APPEAL FOR EASTERN AFRICA

## Before WHITLEY, C. J. (Uganda); THACKER, J. (Kenya); and JOHNSTON, Ag. J. (Uganda).

# ERIFAZI KIRUMIRA, Appellant (Original Plaintiff)

# KHARAMLAI, Respondent (Original Defendant) Civ. App. No. 6/1938

#### (Appeal from decision of Gamble, J. (Uganda)).

## Appeal—Finding of fact.

Held (6-5-38).—That before an appellate Court should interfere with the findings of the trial Judge it must not merely entertain doubt as to whether he was right but be convinced that he was wrong. Caldeira v. Gray (1936 1 A. E. L. R. 540) approved.

#### Agard for the appellant.

## Priestly for the respondent.

Whitley, C. J.—This appeal turns entirely upon questions of fact and before an appellate Court should interfere with the findings of the trial Judge it must not merely entertain doubt as to whether he was right but be convinced that he was wrong: Caldeira v. Gray (1936 1 A. E. L. R. 540).

The evidence is extremely involved but it is clear that either the appellant or the respondent was not telling the truth. The learned trial Judge believed the respondent and our task is to decide whether he was wrong in so doing. The appellant who was the unsuccessful plaintiff in the Court below alleged that he bought 25 head of cattle from the respondent on the steamship S. W. "Grant" at a price of 135 shillings per head. He paid a deposit of 400 shillings and according to him the agreement was that the property in the cattle passed to him at once and that the balance of the purchase price was to be paid at the close of the market at Kabowa. On the road to Kampala the 25 cattle were marked with crosses and the appellant contends that that constituted an appropriation to the contract and that he thereupon took delivery. He alleges that before reaching the market he sold 9 of the cattle for $1,107$ shillings and that he thereupon handed that sum together with a further 1,019 shillings which he had in his pocket to the respondent on account of the balance due. He did this because he did not want to carry so much money about with him. At the market he sold two more of the cattle but did not give delivery or receive payment for them so that at the close 16 still remained in his possession. These 16 the respondent confiscated because as he contended the appellant had not paid what was due. This confiscation is the foundation for the appellant's claim.

The respondent's version was as follows. On the steamer he agreed to sell the 25 cattle and received 400 shillings deposit, the balance to be paid at the market and delivery not to be taken until this balance was paid. The appellant picked out his cattle on the road to Kampala and they were marked. The respondent's servants drove the whole herd to Kampala. He paid all the market dues and kept the 25 tickets for the appellant's cattle as they had not been paid for. He asked for the balance repeatedly without success and eventually agreed to let the appellant sell the cattle one by one and hand over the money for each as received. The appellant sold 17 in this way and handed over 2,126 shillings, the proceeds, to the respondent. At the close of the market 8 cattle remained unsold and 849 shillings were still due to the respondent.

The whole case thus depended upon which version of the arrangement made between the parties was accepted. The learned trial Judge had no hesitation in accepting that of the respondent and I think he was right in so doing. All the probabilities seem to be in favour of that version.

Even had the arrangement for payment been as the appellant alleges, namely at the close of the market, there was no evidence that the appellant was ready and willing to pay or tendered the balance of the purchase price at that time. It appears to have been about that time (close of the market) that the confiscation, as it was called, took place.

It seems most unlikely that a cattle dealer of seven years standing like the respondent would part with the property in and possession of the cattle before being paid and the only business-like arrangement is the one put forward by the respondent. The appellant's story bristles with improbabilities. The price he agreed to pay was 135 shillings per head; yet he says he sold nine for 1,107 shillings before he got to the market representing a loss of 12 shillings per head. The evidence of the market master whom the learned trial Judge believed strongly supports the respondent's case.

I see no reason to differ from the view taken by the trial Judge. The appeal is dismissed with costs.

Thacker, J.—I concur.

Johnston, Ag. J.—I concur.