Philomen Dean v Chanka Bhim

An appellate court should not interfere with concurrent findings of pure primary fact unless the appeal falls within a very limited special category. That requires an error of law or principle, a finding made without evidence, or a plainly unreasonable finding. Recasting an attack on fact-finding as an error of law does not avoid that constraint. The same approach applies whether an appeal lies as of right or only with leave. A challenge to an appellate court’s own finding of primary fact is subject to the same threshold.

The appellant, Philomen Dean, contested probate of a photocopy of a will said to have been made by Higgins Cardenas. The respondent, Chanka Bhim, sought probate and was named as sole executor. The trial judge found that the deceased had signed and duly executed the will and had not destroyed it before his death.

The Court of Appeal of Trinidad and Tobago dismissed the appeal and affirmed those findings. It also found that no application had been made at trial to admit a document examiner’s report as expert evidence. Before the Privy Council, the appellant challenged the concurrent factual findings and the Court of Appeal’s procedure in determining the expert-evidence issue. The central question was whether any ground justified appellate interference.

1. Appeal dismissed. The first three grounds were, in substance, attacks on the trial judge’s fact-finding and the Court of Appeal’s analysis. They did not bring the case within the exceptional category permitting departure from the settled practice of declining to interfere with concurrent findings of pure fact.
2. The practice applies whether an appeal lies to the Board as of right or only with leave. It is not merely that the scales are loaded against an appellant; the Board altogether declines to interfere unless the required special circumstances are shown. The Board relied on Juman v Attorney General of Trinidad and Tobago [2017] UKPC3, following Devi v Roy [1946] AC 508 and Central Bank of Ecuador v Conticorp SA [2015] UKPC 11.
3. For the fourth ground, challenging the Court of Appeal’s finding that no application had been made to admit the expert report, the appellant had to show an error of law or principle, a finding for which there was no evidence, or a plainly unreasonable finding. The absence of a transcript did not establish that the Court of Appeal’s chosen procedure was legally defective. The Court of Appeal had acted on conflicting affidavits, the judge’s notes and the procedure invited by the appellant’s counsel.
4. The fourth ground was therefore no more than an attempt to have a second opportunity after the appellant’s preferred procedure had failed. No basis for interfering with any relevant finding was disclosed, and the appeal was dismissed.

• Privy Council: appeal dismissed.
• Court of Appeal (Trinidad and Tobago): in July 2009, Kangaloo, Jamadar and Soo-Hon JJA dismissed the appeal and affirmed the findings that the deceased had signed and duly executed the will and had not destroyed it before death.
• Trial judge: Hosein J found that the will had been signed and duly executed and that it had not been destroyed before the deceased’s death.