Skatfield v Bank of Nova Scotia

CourtCourt of Appeal (Bahamas)
JudgeHogan, P.,Inniss, J.A.,Georges, J.A.
Judgment Date26 June 1975
Neutral CitationBS 1975 CA 4
Docket NumberNo. 2 of 1974
Date26 June 1975

Court of Appeal

Hogan, P.; Inniss, J.A.; Georges, J.A.

No. 2 of 1974

Bank of Nova Scotia

Contract - Debt

Inniss, J.A.

Hogan, P.; By its amended statement of claim in the court below the respondent sought payment of $83, 680. 68, which was said to be due under guarantees, dated 13th December 1968 and 25th June, 1969, in respect of demand loans and overdraft facilities given to the appellant and others.


By his written defence the appellant denied that he was indebted as claimed and pleaded in the alternative that, if there was any guarantee, which was in any event not admitted, then there was an oral condition precedent that all other collateral would be realised before a claim was made against the appellant and this had not been done. This ground has been abandoned by counsel on appeal but there were further alternative defences of which the following have been raised on appeal: that the respondent had failed to make a demand notice in writing upon the appellant demanding payment and, consequently, he had no liability; that the sums alleged did not reflect all proper credits; and that, therefore, there should be an accounting.


There was an order on 16th October 1972 for the exchange of lists of documents and these were duly exchanged.


The hearing began on 27th September 1973. Oral testimony was taken from one witness only, Mr. Hawkins an officer employed by the respondent. The appellant gave no evidence and called no witnesses. In his …judgment delivered on 13th December 1973, the learned trial judge said that the appellant had not supported his denials with any evidence and had contented himself with technical objections to the production of original documents, that these objections were without substance and that each original document on which the respondent relied had been proved to the court's satisfaction and was enforceable. On the strength of these general statements the court gave judgment for the respondent in the amount claimed.


Against that decision the appellant has appealed on grounds which can be summarised as saying that documents were wrongly admitted in evidence and that the respondent had failed to prove the alleged indebtedness of the appellant.


We think we should say at once that our task in considering this appeal has been made extremely difficult by the fact that the record of the proceedings made by the learned trial judge is, to say the least of it, extremely sketchy; and the position is not improved by the absence from the judgment of any discussion of the issues or findings on the primary facts.


So far as the documents are concerned, the Record indicates that the witness Mr. Hawkins, assistant manager of the plaintiff Bank, produced in evidence a number of documents which he said were originals. He identified the signature on each of these as being that of the defendant, saying that in or during the course of business he was always confronted with documents signed by him.


According to the Record, these Exhibits were produced – to use a composite description – as Exhibits BNS 1 to BNS 6 and in each case, except in regard to the Exhibit produced as BNS 4 it is recorded that a copy was substituted.


The reason for the substitution of the copies for the original was explained to this court by counsel for the plaintiff Bank in the course of argument. From this explanation it appears that Mr. Hawkins in the course of his testimony had informed the court that it was the policy of the Bank not to allow originals to stay out. The court thereupon allowed other documents which Mr. Hawkins said were copies of the above –mentioned originals, and which Mr. Hawkins had brought with him, to be substituted for the originals. The suggestion of the record is that the originals were marked as Exhibits but counsel for the plaintiff stated that this was not the case, and that the copies had been marked with the Exhibit Numbers. This last mentioned fact was confirmed by a statement in an Affidavit sworn by the defendant which we thought it right to admit after hearing the recollection of counsel for the plaintiff Bank as to what had occurred.


It appeared that the defendant at the trial objected to the admission in evidence both of the originals and of the copies and he has raised these issues again on this appeal.


His objection to the admission in evidence of the originals is that they were not agreed between the parties and not proved according to law. On the latter point we understood counsel for the appellant to say that by this the defendant meant that Mr. Hawkins was not a competent witness to prove the defendant's signature on any of the original documents on which it purported to appear. We are unable to agree with this contention. We have already referred to Mr. Hawkins' testimony as to the means by which he became acquainted with the defendant's signature. In our opinion Mr. Hawkins fell within the class mentioned in the following passage which appears in section 29 of the Evidence Act (Cap. 42 of the Statutes of the Bahamas“A person shall be deemed to be acquainted with the handwriting of another person…when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him”, and his evidence as to the signature of the defendant on the above-mentioned originals was properly admitted. In our opinion the signature on the several originals were properly proved and those documents were properly admitted in evidence. We do not attach any great importance to the fact that they were not marked as Exhibits.


The objection of the defendant to the admission in evidence of the copies, which were marked with Exhibit Numbers, as we understood it in argument, was twofold – (1) that they were not copies of entries in a banker's book within the meaning of the Bankers' Books evidence Act, 1968, (Act No. 7 of 1968) and (2) even if they were, the conditions precedent to their admission in evidence laid down in sections 4 and 5 of that Act had not been …with. It is unnecessary to decide these contentions…if they were correct, the fact remains that the originals were properly before the court and it would not avail the defendant simply to show that copies of these documents were wrongly admitted in evidence. In our opinion the appellant would have to go further and show that the judge never perused the originals but relied wholly on the copies. That he has not done, and indeed in his judgment the learned trial judge referred to the originals – “At the Trial each original document on which the Plaintiff's claims are based have been produced and proved to my satisfaction to be authentic, genuine and enforceable.”


We would add that we see no objection to the admission of the two originals which were demand notes, as they were presumably put in as evidence of the “demand loans” on which the plaintiff based a part of his claim.


We turn now to the Exhibit which has been referred to as “BNS”


In the record of the proceedings in the court below on 27th September, 1973, there is a note to the effect that counsel for the respondent, in the course of his opening address said “Plaintiff presents documents to court”. There is no indication as to the precise nature of the documents or that there was any agreement about them; nor is there any indication at that point of the record that any documents were admitted in evidence at that stage of the proceedings.


While the marking of this Exhibit as ‘BNS’ suggests that it was put in before the other Exhibits BNS 1 to BNS 6, our attention has been directed to a passage in the evidence of Mr. Hawkins (p. 27) which is as follows – “I present the list of documents as an Ex. B.N.S.” Three lines before the witness is recorded as saying “Among the Plaintiff's list of documents I recognize the Plaintiff's signature”; and in the line after he is recorded as saying “These documents are in custody of Plaintiff and are mentioned in list of documents of both parties”. These passages strongly suggest to us that the witness was really referring to documents and not simply to a “list of documents”. Further there is nothing on the Record and nothing in the argument to suggest that a list of documents as distinct from the documents themselves was marked as an Exhibit. It appears to us that the words “list of documents” is one of the examples of the unfortunately inaccurate use of abbreviations by the learned trial judge which we have encountered on the Record; and that what Mr. Hawkins was really presenting to the court in evidence were the documents mentioned in the list.


That, however, does not dispose of the matter.


In the judge's note of the appellant's address at the conclusion of the evidence the following passage appears (p.34) – “I objected to the admissibility of the documents at the beginning of this trial”; and the appellant amplified this in the affidavit which he was permitted to put in before this court, in paragraph 4 of which he stated in effect that the ground of his objection to the admission in evidence of Exhibit BNS was that it contained photocopies of documents which had not been agreed by him with counsel for the plaintiff.


This part of the Affidavit appears to us to be supported by the learned trial judge's note of the defendant's submissions with regard to Exhibit BNS except as to the ledger sheets. At page 33 of the Record the defendant is recorded as submitting – Sections 48 to 50 have not been complied with. First group – in Ex BNS including the additional documents save and except ledger sheets” and a little further on “Plaintiff has failed to produce primary evidence save and except ledger sheets.”


It is clear from this note that so far as Exhibit BNS was concerned the defendant was objecting to the admission of all the documents except the ledger...

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