Anis Joseph Halaby & Ors V. Neif Joseph Halaby & Ors (1951)

LawGlobal Hub Judgment Report – West African Court of Appeal

Partnership—Presumption all partners hold in equal shares—Evidence required to rebut presumption—Necessity to examine evidence charging a deceased partner with the greatest care.

Facts

The issue on this appeal was what were the respective shares of the partnership between the appellant, Anis Joseph Halaby, and his two brothers, of whom one was dead. The appellant, A. J. Halaby, claimed that the partners held in equal shares while the respondent, Neif Joseph Halaby claimed much the larger share for himself. The evidence of the said respondent as to the shares rested mainly on his oral testimony, and he also relied on his assertion that in an earlier partnership subsisting between himself and the deceased partner he subscribed the whole capital. Respondent’s Counsel argued that the trial Judge’s finding of fact should not be disturbed.

Held

The presumption is that partners share equally. The trial Judge had misdirected himself on the onus of proof in that, although he had appreciated the presumption, he had not correctly directed himself as to the degree of proof required to discharge that onus. In such circumstances a finding of fact can be disturbed. Further, that where an attempt is made to charge a deceased person, the evidence ought to be looked at with great care, and the mind of the Judge ought to be first of all in a state of suspicion.

The shares of all the partners were equal.

Appeal allowed.