Economic Exports Limited v N.K. Basma Sons & Co Ltd (CC 437 of 1961) [1963] SLSC 50 (14 June 1963)

cused was not called upon to discharge the burden of proof and, in my T_he a~he learned magistrate erred. I will, therefore, allow the appeal on this vieW, d -and remit the case on counts 7 to 11 inclusive to the same or another groun · h h. · d f d · · - istrate together Wit t IS my JU gment or etermmat10n. ma~ was informed from the Bar that all the diamonds involved in this appeal ., , been sold to the Government Diamond Office and, therefore, if a retrial is ,;a~:red there will be no exhibits before the trial court. This certainly is a :atter which I do not think concerns this court but is one for the consideration of the learned Attorney-General. [SUPREME COURT] ECONOMIC EXPORTS LIMITED. v. N. K. BASMA, SONS & CO. LTD. [C.C. 437/61] Plaintiffs Defendants Practice-Application for leave to appeal from inleriocutor;y order:-Appli.catiQn to be ex parte-Courts (Appeals) Act, 1960 (No. 18 of 1960), s. 18 (1) (b'r Judicature (Procedure) Act, 1894 (57 & 58 Vict. c. 16), s. 1 (1) (b)-Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 31 (1) (i). Plaintiffs appiied by motion for leave to appeal to the Sierra Leone Court of Appeal from an interlocutory order made by the Supreme Court (Marke J.). at the hearing of the motion, counsel for the defendants argued that the application should have been by summons in chambers and not by motion, relying on section 18 (I) of the Courts (Appeals) Act, 1960, which provides: " Subject to the provisions of this section, an appeal shall lie to the court of appeal ... (b) by leave of the judge making the order or of the court of appeal from any interlocutory judgment. ... " Held, granting the leave applied for, that "leave (to appeal from an inter­ locutory order of the Supreme Court) may be obtained ex parte on summons or by motion with a preference for the cheaper process." Case referred to: T. A. Ruf & Co. Ltd. v. Pauwels [1919] 1 K.B. 660. Gyrus Rogers-Wright for the plaintiffs. Mrs. Ursula D. Khan for the defendants. R. B. MARKE J. This is an application by motion to grant leave to appeal to the Sierra Leone Court of Appeal from an interlocutory order made by me. Mrs. Khan, who appeared for the respondents/defendants on the motion, argued that the application should have been by summons in chambers and not by motion and in support of her argument she has referred me to section 18 (1) (b) of the Courts (Appeals) Ordinance, 1960, the relevant portion of Which is as follows: (b) by leave of the judge making the order or of the court of appeal from any interlocutory judgment order .... " 29 s. c. 1963 FAWAZ v. CoM­ MISSIONER OF POLICE. Bankole Jones J. Freetown June 14, 1963 Marke J. s. c. 1963 ECONOMIC ExPORTS LTD. v. N.K. BASMA, SoNS & Co. LTD. Marke J. Free town June 14, 1963 Bankole J ones Ag.C.J. Mrs. Khan urged that the fact that the Ordinance provides that the leave was to be obtai;1ed from the judge and not from the court at once makes it imperative that the application must be by summons. In the Judicature Act, 1894, s. 1, there appears the same provision as in our section 18 (1) (b) and this same provision appears in the Supreme Court of Judicature (Consolidation) Act, 1925. It appears to have been generally held that the reference to a judge means a judge sitting in chambers. In T. A. Ruf & Co. Ltd. v. Pauwels [1919] 1 K.B. 660, C.A., it was held that the word " judge " does not include a divisional court. In Daniell's Chancery Forms, 6th ed., p. 757, the following appears in a note to the Judicature Act, 1894, s. 1, referred to above: "Under the above provisions no appeal lies from an interlocutory order without leave. As a rule, such leave is applied for at the time the order is made: and that is the proper course. If made subsequently the application should in the first instance be to the court below (Ord. 58, r. 17) and if refused it may be made by way of original motion and not by way of appeal to the Court of Appeal-(Cropper v. Smith, 24 Ch.D. 305). In any case the application will be ex parte." This edition of Daniell's Forms provides a Form-No. 1469-of Motion paper for leave to appeal from an interlocutory order. From this it follows that where the interlocutory order was made in a course of action which would ordinarily in the Supreme Court of Judicature be assigned to the Chancery Division of that court, the leave must be by an ex parte motion ; while if it was a matter assigned to the Queen's Bench Division the leave would have been obtained on an ex parte summons. In either case the application should have been ex parte. As we have no separate divisions in this court, I hold that leave may be obtained ex parte on summons or by motion with a preference for the cheaper process. I grant the leave applied for and order accordingly. As Mrs. Khan has been brought here, I shaH hear counsel on the question of costs. Both counsel agree that costs should be costs in the cause and I so order. [SUPREME COURT] REGINA Respondent v. ALHAJI S. G. SEISAY Appellant [Magistrate Appeal 35 I 63] Criminal Law-F'r({udulem conversion-W helhec. accused was " truslee. "-/.Q;rcJmY Act, 1916 (6 & 7 Geo. 5, c. 50), ss. 20, 21, 46. By a trust deed dated February 22, !945, a certain piece of land in Freetown was vested in fee simple in the appellant and rwo other trustees for the benefit of a body known as the Alimania Society. The purpose of the trust 30 h erection of a school building on the land for use by all Mohammedan was ~ :s of the Temne community in Freetown. In 1958, the Government medmrte 0 ,, to contribute towards the cost of building the school. On dew• . b ·~ry· 1 . 1959, a board of management for the school was created and Fe ru~ ' llant was appointed manager of the board. On July 21, 1959., the ci':::rnment informed appellant that i~ would pay ~2,000 for the school during the current financial year and £1,400 m the followmg year. In 1960, primary education in Fr.eetown became the responsibility of the F etown City Council, and, on October 4, 1961, appellant wrote to the town ,rerk asking for a contribution for the school. The Council made a grant c,e to the school of £2,000 by means of a cheque made out to appellant as manager of the school. This cheque was crossed, but appellant asked the city ~~easurer to open it on the representation that the school had no bank account, a representation which appel1ant knew was false. Appellant cashed the cheque and converted the money to his own use. Appellant was convicted in a magistrate's court on a charge of fraudulent conversion contrary to section 20 (1) (iv) (b) of the Larceny Act, 1916, which orovides: " Every person who . . . having . . . received any property for . . . ;ny other person, fraudulently converts to his own use . . . the property . . . shaH be guilty of a misdemeanour .... " Appellant appealed to the ')upreme court on the ground that the charge should have been laid under section 21 of the Act, which deals with conversion by trustees. The word " trustee " is defined in section 46 as meaning " a trustee on some express trust created by some deed, will, or instrument in writing. . . ." Held, dismissing the appeal, that appellant's conversion of the £2,000 grant from the city council was accomplished as manager of the school board and not as trustee under the trust deed of February 22, 1945. Zinenool L. Khan for the appellant. John H. Smythe (Acting Attorney-General) for the respondent. B&"'KOLE JoNEs AG.C.J. This is an appeal against the conviction of the appellant on a charge of fraudulent conversion contrary to section 20 (1) (iv) (b) of the Larceny Act, 1916. The facts are that by a trust deed dated February 22, 1945, a certain piece of land in Oldfield Street, Freetown, was vested in fee simple in three trUstees, one of whom was the appellant, for the use and benefit of a body known as the Alimania Society. The object of the trust was to erect a school building on the land for use by all members of the Temne community in Freetown who are Mohammedans. It would appear that in the year 1958, as a result of certain negotiations, the Government undertook to contribute towards the cost of the building of the school when completed (see Exh. " S "). Either when, or before, the building was completed (it is not clear which) a board of management was created on February 1, 1959, and the appellant was appointed the first manager of this school board (see Exh. "H "). On July 21, 1959, the Government (Education Department) wrote to the appellant as manager of the school, inter alia: " For your information, the Department can pay only £2,000 during the present financial year, i.e., £1,000 forthwith and another £1,000 when the Work is completed in accordance with the Divisional Engineer's observa­ tions. The difference between £2,000 and 50 per cent. of £6,800 (i.e., £1 ,400) Would be provided for in the next year's estimates." (See Exh. "T.") 31 s. c. 1963 REG. v. SEISAY. Bankole Jones Ag.J. s. c. 1963 REG. v. SEISAY. Bankole Jones Ag.C.J. Meanwhile, in 1960, primary education became the responsibility of the c1ty council, and the school, named the Imaniya School, came under the council's control. On October 4, 1961, the appellant in his position as manager wrote to the town clerk (see Exh. "B ") asking for the fulfilment of Government's promise of its contribution, the balance of which he stated to be £2,400. Tne appellant was then a city councillor and still is. The council made a grant to the school of £2,000 in favour of the manager of the school by a cheque. This cheque was crossed, but the appellant asked the city treasurer to open it on the representation that the school had no banking account, a representation which was false to the appellant's knowledge. The appellant cashed the cheque and on the findings of the learned magistrate fraudulently converted the money to his own use and benefit. After reviewing the evidence the learned magistrate in his judgment stated as follows: " At the conclusion of the case for the defence, accused's counsel, Mr. Khan, submitted that the charge was bound to fail because the evidence adduced both on behalf of the prosecution and the defence had established that the accused was a trustee and that if at all the accused had committed any offence, he should have been charged under section 21 of the Larceny Act, 1916, which contemplates conversion by a trustee, and not under section 20 (1) (iv) (b), since section 20 (2) expressly negatives the bringing of such a charge within its said purview. He argued that according to the trust instrument, which was tendered in evidence, the land was acquired for the purpose of erecting a school building for the use by all members of the Temne Community in Freetown who are Mohammedans and that by the same instrument the accused was appointed a trustee for carrying out that purpose. " Mr. Smythe, in his reply, stated that the trust instrument only created a trust for the land. Section 21 of the Larceny Act, 1916, only relates to conversion of a trust property by a trustee. The money in this case was received by the accused, not in his capacity as a trustee under any instru­ ment, but in his capacity as manager of the schooL " I have studied the trust instrument, which recites, inter alia, that the land be acquired ' for the purpose of erecting a school building for use by all members of the Temne community in Freetown who are Mohammedans~ and ' that the fee simple in the said land vest [in the trustees] as trustees of the Alimania Society ' and ' to hold the same unto and to the use of the trustees in fee simple for the use and benefit of the Alimania Society and the members thereof and of all persons claiming through the members according to the rules of the said society.' From the foregoing, I do not think, with respect to Mr. Khan, that the instrument created anything more than a trust for the land. The £2,000 is not trust property, nor is it an accrual from the land. Section 21 of the Larceny Act, 1916, under which he contends the accused should have been charged, is applicable only to instances of conversion by trustees, as defined in the Act, of trust property. I accordingly reject the submission that the charge is wrongly laid. " All the documents put in by the defence refer to the accused as the manager of the school. The £2,000 cheque was made payable to 'the Manager of the Imaniya School ' and it was received by the accused in his capacity as such. 32 " According to the facts of the case the school had a banking account. Accused received a crossed ch~que for £~,000 but instead o~ paying_ it into rh banking account, he took 1t to the City treasurer and lied to hun that :he school had no banking account and he requested him to make it open.'' The,ree is only one ground of appeal, which is as follows : " That the learned trial magistrate misdirected himself on a question f law in holding that the money received by the accused for or on the ~ccount of the Imaniya School was not trust property or alternatively was not property affected by the express trust of which said property the accused was trustee." Mr. Khan argued that the appellant was wrongly charged under section 20 (iv) (b) of the Larceny Act, 1916. He submitted that the appellant was a ·' trustee " on the express trust created by the deed of 1945 and that the sum of £2,000 was received by him as such trustee to be used for the object of the charitable trust so created under the deed. He submitted that it made no difference that the appellant received the money as manager of the school board. He received it, he said, by virtue of his being a trustee under an expn:ss trust. In these circumstances, therefore, he argued that section 20 (2) precluded the present charge being brought against the appellant. He ought. in fact, he said, to have been charged under section 21, and, his not having been so charged, the appeal must succeed. The learned Acting Attorney-General supported the legal findings of the learned magistrate. I must confess that I find the argument of Mr. Khan not only attractive but ingenious. My view, however, is that once a board of management of the school had been created and ordinary trustees, of whom the appellant was one, appointed, with powers to operate a banking account for all moneys received on behalf of the school, the appellant, as manager of the school board, was in duty bound to account for all moneys which came into his possession in his capacity as such manager. I, therefore, find that the amount of £2,000 so received was not property affected by the express trust created under the deed of 1945. If it was trust property at all, it became so because the appellant received it as manager and ordinary trustee for his school, and it was in this capacity he fraudulently converted it. He cannot now invoke the deed of 1945 to shield his dishonest act merely because he appears to have been one of the three trustees under that deed, one of whom is now dead. His previous dealings with the first grant of £1,000 to the school completely destroys the appellant's legal contention. He cannot, so to speak, blow hot and cold at ·the same time. In that instance he convened a meeting of the board and the money was deposited into the account of the school at Barclays Bank and a decision was taken as to its disbursement. It is, therefore, my view that the appellant's receipt of the £2,000 must be imputed as receipt as manager of the school board and not as receipt as a trustee under any express trust deed. The appeal is, therefore, dismissed. 33 3 S.L.-3 s. c. 1%3 R.EG. v. SEISAY. Bankole jones Ag.C.J.