George Mattouk V. Elie Massad (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

Seduction—Girl’s story of rape—No corroboration—Demeanour of witness—Court of Appeal is guided by trial Judge—But if other circumstances exist which in opinion of Court of Appeal go to credibility of witness Court of Appeal may differ from trial Judge.

There is no need to set out the facts.

Appeal allowed.

Cases cited :—

Colonial Securities Trust Co. v. Massey (1896 1 Q.B. 38).

Coghlan v. Cumberland (L.R. 1898 1 Ch. 704). Rex v. Graham (4 Cr. App. Rep. 218),

E. 0. Asafu-Adjaye for Plaintiff-Respondent. Frans Dove for Defendant-Appellant.

The following judgments were delivered :— GRAHAM PAUL, C.J., SIERRA LEONE.

The plaintiff-respondent and the defendant-appellant are both Lebanese people residing at Kumasi. The respondent has a daughter Mary who at the times material to this case was nearly seventeen years of age. The respondent sued the appellant in the Kumasi Divisional Court of the Supreme Court, his claim being for £2,000 as damages for the seduction and carnal. knowledge by the appellant of the respondent’s said daughter and servant Mary Mattouk. The learned Judge in the Court below after a lengthy trial gave judgment for the respondent assessing the damages at £1,200 and the costs at £105. From that judgment the appellant has appealed to this Court.

In my opinion, the first ground of appeal is the only one which requires the serious attention of this Court. It is that the judgment was against the weight of evidence. The appellant in this ground challenges the finding of the Trial Judge that the appellant seduced the respondent’s daughter Mary. That ‘is a

finding of fact by the trial Judge who heard and saw the witnesses give their evidence and it follows of course that these is upon the appellant a very heavy onus of satisfying this Court affiimatively that the trial Judge was wrung in this finding of fact. With respect I accept as authoritative and binding upon this Court the dictum of Lord Esher, M.R. in the case of Colonial Securities Trust Company v. Massey (1896, 1 Q.B. 38)1—

” Where a case tried by a Judge without a jury comes ” to the Court of Appeal, the-presumption is that the decision ” of the Court below on facts was right and that presumption ” must be displaced by the appellant.”

In considering whether in this case the appellant has discharged the heavy onus it is necessary to examine at some considerable length the evidence in the case and the very comprehensive notes of his judgment which the learned Judge in the Court below made.

In the early part of his notes the learned Judge says, ” There ” is no doubt that the girl had had connection with the defendant ” or somebody else and her evidence that it was the defendant ” stood alone.” In regard to that statement it is enough to say in the first place that the girl on 24th July, 1940, gave birth to a child so that she must certainly have had connection with some man; and in the second place that counsel for the respondent has not suggested, and indeed on the record of the evidence before us he could not possibly suggest, that there was any corroboration whatever of the girl’s evidence that it was the appellant with whom she had the sexual connection resulting in the birth of the child. All that is common ground.

In these circumstances it seems to me that the first duty of the trial Judge was to examine, and to examine with the most meticulous care, both the general lines and the particular details of the story told by the girl ‘when she gave her evidence as to the occasion on which the alleged sexual intercourse with the appellant took place and as to the surrounding facts immediately before and immediately after the occasion. The first observation I have to make is that in his judgment the learned Judge made no attempt whatever to examine or analyse either the general lines of the girl’s story or the details of it. He does not even give a summary of her story or of the facts immediately preceding or immediately following the material occasion.

The only comment which I have been able to find that the learned Judge makes on the evidence of the girl on the vital point of her story is as follows :—

” After carefully warning myself against the danger of acting on ” the evidence of a single witness I have come to the conclusion that ” Mary has told the truth as to her seducer before this Court.

” watched her demeanour as I have watched the demeanour of all the ” parties and witnesses who appeared before me in this calm; I found ” that of Mary and of her parents to be very much in their favour and ” I certainly could not say the same of the defendant.”

These remarks, though lacking in specification, are very strong and they are entitled to receive from this Court the most careful consideration. Where acceptance or rejection of a witness’s story depends, or might depend, on the demeanour of the witness, an Appeal Court would certainly accept the views of the trial Judge as to demeanour. I respectfully accept on this point the views expressed by Lindley, M.R. in the case of Coghlan v. Cumberland (L.R. 1898 1 Ch. at pages 704 and 705) which are as follows :—

” The case was not tried with a jury, and the appeal from ” the judge is not governed by the rules applicable to new ” trials after a trial and verdict by a jury. Even where, as ” in this case, the appeal turns on a question of fact, the ” Court of Appeal has to bear in mind that its duty is to ” rehear the case, and the Court must reconsider the materials ” before the judge with such other materials as it may have ” decided to admit. The Court must then make u_p its own ” mind, not disregarding the judgment appealed from, but “. carefully weighing and considering it; and not shrinking ” from overruling it if on full consideration the Court comes ” to the conclusion that the judgment is wrong. When, as ” often happens, much turns on the relative credibility of ” witnesses who have been examined and cross-examined ” before the judge, the Court is sensible of the great advantage ” he has had in seeing and hearing them. It is often very ” difficult to estimate correctly the relative credibility of ” witnesses from written depositions; and when the question ” arises which witness is to be believed rather than another, ” and that question turns on manner and demeahour, the ” Court of Appeal always is, and must be, guided by the ” impression made on the judge who saw the witnesses. But ” there may obviously be other circumstances, quite apart from ” manner and demeanour, which may show whether a state” ment is credible or not; and these circumstances may warrant ” the Court in differing from the judge, even on a question of ” fact turning on the credibility of witnesses whom the Court ” has not seen.”

At this stage I propose to remedy the unfortunate omission from the judgment of the learned trial Judge and summarise the story of the girl as told in her evidence at the trial. This may conveniently be done by first summarising seven separate and material incidents to which the girl spoke. Apart from the girl’s evidence as to these seven incidents there is no evidence at all as to relations proper or improper between the girl and the appellant,

1. In October, 1939, the appellant with his wife paid a -visit to the respondent’s house. They were sitting on the verandah of respondent’s house with the girl’s mother. The girl went into the dining room to prepare coffee and the appellant followed her. In the dining room the appellant stood by the girl and started to feel her hands, arms, breasts_, neck and back. She stepped away from him; he returned to the verandah and the girl finished making the coffee.
2. The next time (no date given) the appellant and his wife came, the girl again went into the dining room to prepare coffee. The appellant followed her, felt one of her hands and dragged her between his legs. She drew her hand away and left the dining room, refusing to obey the appellant’s signals to her to return.
3. The next time (no date given) the appellant and his wife came they again sat in the verandah with the girl’s mother. The appellant on that occasion while sitting on the verandah along with his wife and the girl’s mother held his penis in his hand; it was protruding from the fly of his trousers. The girl understood that he was exposing his penis for her benefit; he was looking at her and at his penis as if pointing it out to her. This was in the presence of the appellant’s wife and of the girl’s mother, on the verandah in daylight.
4. On or about 15th November, 1939, the appellant came to the respondent’s house alone and happened to find the girl alone in the house. He sat on a chair in the hall. The girl excused herself saying that she was going to change her dress. Why she should want to change her dress at that particular time does not appear. She went to her parent’s room to change. The appellant followed her, threw her on the bed, pulled off her drawers and forcibly had sexual connection with her against her will. This is the act of connection from which, according to the respondent’s case, the birth of the child resulted. The girl was afraid and trembling and dared not tell her mother of this incident. The room in which this is said to have happened had a window open at the time facing a neighbour’s house. The window was two paces from the bed. The parents or brother or sister of the girl might have come in at any moment while this was going on.

The same evening the appellant and his wife leans but the girl was in pain, went to her bedroom and slept and aid ‘tot seethe appellant or his wife at all on this occasion.

6. A few days later the appellant and his wife again visited the respondent’s house, with their baby. They were all on the verandah with the girl and her mother. The baby cried and the girl took it in her arms till it slept, when she went to lay it on the bed in the bedroom which has windows and a door opening on to the verandah. The appellant followed her into the bedroom. As she was bending over, laying the sleeping baby on the bed with her arms under the baby the appellant in the girl’s own words ” bent on me, drew off my drawers, put one of his hands on my mouth and I felt something hard go into me again. I wanted to make a noise but I could not because his hands was on my mouth. My arms were under the baby on the bed so I could not move. I was stooping over the bed.

The girl’s mother and the appellant’s wife were all this time on the verandah which was about three yards from the bed. The door of the bedroom on to the verandah was open with curtains hanging. Again in the girl’s own words:—” I could not struggle ” because my arms were under the baby. I did not draw my ” hands away for fear the baby would wake up. I could not draw ” my arms out even if I wanted to because he was too close to me ” pushing me on to the bed. I could not move and remained ” like that until he finished with me.”

7. A few days later appellant came again with his wife and baby to respondent’s house. While the appellant, his wife, and the girl’s mother were sitting on the verandah the girl took the baby into the bedroom to change its clothes and the appellant followed her. As to this occasion the girl said :— ” He half knelt down—pushed his hand up inside ” my skirt and started to feel my legs. Then I left ” the baby and I went out into the verandah and ” then he came out into the verandah with the

IC b_ab_y

The girl’s own story of these seven incidents is the only evidence in the case that the appellant had any improper relations with the girl or even that he hid any opportunity to have such relations with her.. Even her own mother does not corroborate the girl as to a single one of the occasions when she said the appellant followed her into the bedroom from the verandah. It is a story which is on the face of it so manifestly and utterly impossible to believe that the question of her demeanour in telling