Lord Guest:

This appeal is from a decision of the Court of Appeal of the State of Singapore allowing the respondents' appeal against the judgment of Ambrose J in the High Court of Singapore awarding the appellant $30,711.60 by way of demurrage under a contract for the transhipment of cargoes of rice.

The appellant's evidence was that on 18 October 1958 he and Goh Leh acting on behalf of the respondents had made a verbal contract whereby the appellant was to act as the lighterage contractor of the respondents. Rates of payment for the appellant's services had been agreed, including demurrage of 60 cents per ton. It is common ground between the parties that the appellant transhipped cargoes of rice from two steamers, the "Planet" and the "Incharran" which had arrived at Singapore on 21 October and 27 November 1958 respectively. These cargoes were ultimately bound for Indonesia on coastal steamers. The respondents paid the appellant $71,128.71 for lighterage, towing and stevedoring of these two cargoes.

Goh Leh gave evidence for the respondents denying that he had ever discussed rates and conditions of lighterage with the appellant. The respondents denied that any contract for lighterage had ever been made between them and the appellant.

In this state of the evidence Ambrose J accepted the appellant's evidence that he and Goh Leh had made an agreement in the terms narrated. He saw no reason to disbelieve the appellant who was subjected to a severe crossexamination. The appellant, he said, impressed him as a simple, honest and straightforward witness. The trial Judge said he was satisfied that Goh Leh told a deliberate lie in saying he had no discussions with the appellant.

The Court of Appeal found that there was a considerable volume of independent evidence both documentary and oral which was consistent only with the respondents' case. Buttrose J who delivered the judgment of the Court considered that Ambrose J was plainly wrong in accepting the appellants' evidence.

It is apparent from an examination of the evidence that there is a direct conflict of evidence between the appellant and Goh Leh. The possibility of a misunderstanding is eliminated by the fact that Goh Leh denied having any discussion with the appellant about lighterage. One or other of these two witnesses must be lying. The trial Judge who saw and heard the witnesses has reached the conclusion that it was Goh Leh who was untruthful and that the appellant was telling the truth.

I. Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge's conclusion;

II. The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;

III. The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court.

Later his Lordship quoted with approval a passage from the speech of Lord Shaw in Clarke v. Edinburgh & District Tramways Co. Ltd. [1919](HL) 35, 37.

In my opinion, the duty of an appellate Cour