Hassan D. Fawaz v Commissioner of Police (23 of 1963) [1963] SLSC 27 (8 May 1963)

s. c. 1963 REG. v. SAWYERR, SAWYERR AND THOMAS. Dobbs Ag.l. Freetown May 8, 1963 Bankole J ones I. in the matter I think they would be dispelled by the case of Poole v. Reginam [1960] 3 All E.R. 398 where the corresponding provision of the Kenya Criminal Code relating to entry of nolle prosequi, which is similar in wording to our section 37 of Cap. 39, was considered. The one information was subsisting and another had been signed before the nolle prosequi was entered. The Privy Council held that the only proceedings which were discontinued as a result of the entering of the nolle prosequi were the proceedings under the information in which it was entered, and that if the second information took effect from the date of signature, it was not rendered invalid by the existence at that moment of the former information. It is true that in that case the nolle prosequi was entered later on the same day as the second information was signed and that the second information was filed after the nolle prosequi had been entered. I do not, however, think this affects the matter and I hold that case No. 1002 was a subsequent proceeding within the meaning of section 37 of Cap. 39 so as not to be barred by the entry of the nolle prosequi. The application is accordingly dismissed. Counsel may address me on the question of costs. [SUPREME COURT] HASSAN D. FAWAZ v. COMMISSIONER OF POLICE THE ATTORNEY-GENERAL v. HASSAN D. FAWAZ [Magistrate Appeal 23 I 63] Criminal Law-Dealing in diamonds contrary to terms of licence-Purchase of diamonds from unauthorised persons-Dates of purchases matter of speculation­ Credibility of witnesses. Unlawful possession of diamonds--Whether licensed dealer can be in unlawful possession of diamonds within dealing area-Length of possession of diamonds-­ Burden of proof. Alluvial Diamond Mining Act (Cap. 198, Laws of Sierra Leone, 1960), ss. 2, 12 (9), 18 (3), 21, 24. The accused was charged in a magistrates' court on twelve counts with violating certain sections of the Alluvial Dia.n10nd Mining Act (the Act). After a trial, he was found guilty on counts two through six and discharged on the others. Accused appealed to the Supreme Court against his conviction. and the Attorney-General appealed against accused's discharge on counts seven through eleven. In counts two through six, accused was charged with dealing in diamonds contrary to the terms of his alluvial diamond dealer's licence in violation of sections 18 (3) and 24 of the Act. Section 12 (9) (a) of the Act provides that the holder of a dealer's licence is entitled to purchase diamonds either from another holder of a dealer's licence or from the holder of a mining licence, and it was alleged that accused had purchased diamonds from unauthorised persons on January 14, and February 2, 23 (twice) and 27, 1963. Accused's records indicated that he had purchased diamonds on January 14 and February 2 and 23 from one Bachil!y, and on February 23 and 27 from one Kondeh. Both Bachilly and Kondeh were persons from whom accused lawfully could purchase, but Bachilly testified that he had sold to accused only once in 22 and once in February, without stating on what dates. Kondeh testified Januarv ~ . that he had sold diamonds to accused only once, on t<ebruary 15, and he derued · · sold •o accused on February 23 and 27. haVlfl 0 e.. C;unts seven through el~ven ~~barged the acc~sed wit? unlawful possession of diamonds contrary to sectwn .<;I of the Act, whiCh provides: " A person shall be guilty of a contravention of this section if he is in uossession of diamonds and he fails to prove u'1at he is lawfully in possession • of such diamonds : Provided that- . · · (c) where an area has been declared to be a diamond non-dealing area, the holder of an alluvial diamond deaier's licence shall not be deemed to be lawfully in possession of diamonds, unless such diamonds have not been in his possession for a period exceeding one month and are in his possession- (i) outside such diamond non-dealing area; or (ii) within a diamond non-dealing area, under and in accordance with the terms and conditions of a written permit issued to him for that purpose by an area superintendent or ... by a warden .... " The magistrate held that accused's possession was iawfui because it was within a diamond dealing area. Held, allowing the appeals as to counts 2, 3, 4, 7, 8, 9, lO and 11 and dismissing the appeal as to counts 5 and 6; (1) that, since Bachilly was unable to state the exact dates on which he had sold diamonds to the accused, the ~agistrate's conviction of the accused on counts 2, 3 and 4 was " a matter of speculation~" (2) That the magistrate was correct in convicting the accused on counts 5 and 6. (3) That the magistrate " misdirected himself in. iaw in holding that a licensed dealer cannot be in unlawful possession of diamonds within a dealing area. (4) That the magistrate was correct in holding that a diamond dealer is entitled to have in his possession diamonds for any period in a dealing area; and (5) That, with regard to the diamonds which were the subject of counts seven through eleven, the magistrate erred in failing to call on the accused to satisfy the court that he had come by the diamonds in accordance with the provisions of section 12 (9) of the Act. Note: The part of this decision upholding the conviction of accused on counts 5 and 6 was reversed by the Court of Appeal on August 12, 1963 (CTiminal Appeal 19/63 sub nom. Attorney-Generai v. Fawaz). Cases referred to: Rex v. Oliver [19441 K.B. 68 ; Sierra Leone Finance Co. LttL v. Comptroller of Customs (1959) 16 W.A.C.A. 83 ; John v. Humphreys [1955) 1 W.L.R. 325; [1955] 1 All E.R. 793. Berthan l-Jacaulay for the accused. Donald Macaulay (Senior Crown Counsel) for the Commissioner of Police and the Attorney-General. B&"<K.OLE JoNEs I. The accused in the court below was charged on twelve counts with infringing certain sections of the Alluvial Diamond Mining Act (Cap. 198). At the close of the case for the prosecution, and after submissions made by counsel, the learned trial magistrate held that there was no case to answer as regards the first, seventh, eighth, ninth, tenth, eleventh and twelfth counts, and he thereupon discharged the accused on these counts. He, however, held that the accused had a case to answer in regards to the second to the 23 s. c. 1963 FAWAZ v. CoM­ MISSIONER OF POLICE. Banknle Jones I. s. c. 1963 FAWAZ v. CoM­ MISSIONER OF POLICE. Bankole Jones J. sixth counts inclusive. The trial proceeded as to these latter counts and the learned magistrate found the accused guilty on each and all of them and sentenced him to six months' imprisonment with hard labour on each count. The case now before this court is in the nature of cross appeals, first by the accused against his conviction and secondly by the Attorney-General against the accused's discharge but only as to counts 7 to i 1 inclusive. In the first appeal the accused is the appellant and in the second the respondent. In order to avoid confusion I will refer to him throughout this judgment as "the accused." Now as to the first appeal which relates to counts two to six inclusive. The accused was charged on each of these counts with contravening section 18 (3) and section 24 of the Act. Section 18 (3) reads as follows : " No person shall deal in aliuvial diamonds except under and in accordance with the terms of a prospecting right or of a licence granted under this Ordinance." Section 24 is the penal section and need not be set out here. The facts are that the accused is the holder of an alluvial diamond dealer's licence. It is conceded that the terms of his licence are to be found in section 12 (9) (a) of the Act which reads: " The holder of an alluvial diamond dealer's licence shall be entitled to (a) purchase alluvial diamonds from the holder of an alluvial diamond mining licence or from the holder of an alluvial diamond dealer's licence." In count 2, he is alleged to have bought on January 14, 1963, 1,300t carats of diamonds contrary to the terms of his licence, that is to say, that he did not purchase from either the holder of an alluvial diamond mining licence, or from the holder of an alluvial diamond dealer's licence. The third and fourth counts make the same allegation as to his purchase of diamonds but on different dates, namely, as to count 3, on February 11, 1963, 17 carats and, as to count 4, on February 23, 1963, 230 carats. The fifth and sixth counts make a similar allegation as to his purchase on different dates, namely, as to count 5 on February 23, 1963, 150 carats and as to count 6 on February 27, 1963, 63 carats. It is conceded that both A. M. Bachilly and A. M. Kondeh (who were the fifth and sixth prosecution witnesses, are persons who could lawfully sell diamonds to the accused by virtue of the licence each possesses. There is evidence that on each of the specific occasions on which it is alleged the accused bought diamonds, he said he issued receipts to them for such pur­ chases-see Exhibits " E" and " G " and that he entered the transactions in a register provided for that purpose-see Exhibits "A" and" H" respectively. Bachilly and Kondeh gave evidence in the court below. Bachilly's evidence was to the effect that he sold diamonds to the accused only once in January 1963 without stating what date it was, and also only once in February 1963, also without stating what date it was. It is to be observed that Exhibits "E " and " G " as well as " A " and " H " show that the accused bought from Bachilly four times in January and three times in February on specific dates including the dates alleged in counts 2, 3 and 4. Kondeh's evidence was to the effect that he sold diamonds to the accused only once and he produced a receipt for this sale-Exhibit "T "-which 24 8 that he sold 15 carats for £330 to the accused on February 15, 1963. shoW b f d d d f ·1 . t . E h"b" ,, E ., Th. transaction is to e oun recor e on a counter 01 rece1p m x 1 1t • - :son the register in Exhibits "A" and "H " respectively. He denied having an!~ diamonds to the accused on February 23 and 27, 1963, as recorded in the 50 ,c~d's counterfoil receipts in Exhibit " E " and his register Exhibits " A " acc .. 0~ and " H" respectively. On these facts the learned magistrate found as follows: " I have listened carefully to the evidence of the prosecution and that of the defence. I have taken everything into consideration inciuding the demeanour of P.W. 5 and P.W. 6 and of the accused and D.W. 1 when they were in the witness box. The question to be decided at this stage is whether P.W. 5 and P.W. 6 were speaking the truth when they said that they did not deal in all the transactions as recorded in Exhibit ' E ' with the accused. As I have said earlier, that I have taken everything into consideration, I have observed nothing from the behaviour of either P.W. 5 or P.W. 6 when they were in the witness box to create any doubt in my mind that they were not truthful witnesses. On the other hand, I am quite certain the accused and D.W. 1 were not speaking the truth with regard to the transactions recorded in Exhibits • E ' and ' G.' I believe entirely the evidence of P.W. 5 and P.W. 6. The prosecution's case is that if the accused did not deal with P.W. 5 and P.W. 6 on all the occasions entered in Exhibits ' E ' and ' G ' the accused must then have dealt in diamonds with persons whom he should not deal with under the Ordinance. "Since I have come to the conclusion that both P.W. 5 and P.W. 6 were truthful witnesses and that the accused and his witness did not give truthful evidence, I agree with the prosecution that the accused must have dealt in diamonds with persons whom he should not deal with. I believe that :he accused, having dealt with persons whom the law prohibits him from dealing with, deliberately entered the names of P.W. 5 and P.W. 6 on all the occasions in Exhibits ' E ' and • G ' in order to deceive the proper officers who are entitled to call for his books to be inspected." Mr. Berthan Macaulay filed two grounds of appeal, namely: Ground 1: " Assuming that the learned trial magistrate's finding of fact can be supported, i.e., that the accused did not deal with P.W. 5 and P.W. 6, who are licensed miners, he erred in making the inference that the dealing must necessarily have been with persons who are not licensed diamond miners. No evidence is led that the dealing was with persons who are not diamond dealers." Ground 2: " That the decision was unreasonable and having regard to the evidence could not be supported." Now before examining the submissions made on either side, I think it is proper to mention that Mr. Donald Macaulay, Senior Crown Counsel, had to concede that the allegation in count 2 was not proved. He did not so concede as regards counts 3 and 4. It seems to me, with respect, that ~he magistrate erred in convicting the accused not only on count 2 but also m convicting him on counts 3 and 4. The evidence is that Bachilly sold 25 s. c. 1963 FAWAZ v. COM­ MISSIONER OF POLICE. Bankole Jones ]. s. c. 1%3 FAWAZ v. CoM­ MISSIONER OF POLICE. Bankole Jones J. to the accused only once in January 1963, and once also in February 1963, without his specifying what dates. The accused records, as I have stated earlier, showed that Bachilly sold to him four times in January and three times in February on certain specific dates. Bachilly did not say on what dates his sales took place. It was, therefore, a matter of speculation, in my view, for the learned magistrate to have found that Bachilly's transactions took place on one specified date in January and two speci.lied dates in February. For these reasons I think the learned magistrate was wrong and I accordingly ailow the appeal and order the conviction and sentences on counts 2, 3 and 4 to be set aside. There now remain counts 5 and 6 for consideration. Mr. Berthan Macaulay submitted as to his ground 1 that the learned magistrate was misled by the prosecution as to the inference to be drawn from the facts in the absence of any evidence that the accused purchased either from the holder of an alluvial diamond mining licence or from the holder of an alluvial diamond dealer's licence. The pith of the prosecution's case was that the accused, being the holder of a diamond dealer's licence, was entitled to buy only from the persons described in section 12 (9) (a). The accused said he bought from A. M. Kondeh, a person who could lawfully sell. The !earned magistrate, having taken everything into consideration, including the fact that the accused swore that he issued receipts for his purchases and solemnly declared these transactions in a register required to be kept by the rules made under the Act for that purpose, found that he was not speaking the truth. He found that the accused deliberately entered the name of A. M. Kondeh in his books as regards the transactions on February 24 and 27, 1963, respectively, in order to deceive the proper officers who are entitled to call for his books to be inspected. He, therefore, drew the conclusion that the accused was guilty under section 18 (3) of the Act. I do not, with respect, agree with the submission of Mr. Berthan Macaulay because I think this was a case which involved the credibility of the witnesses. When once a challenge is made regarding an accused's dealings in diamonds, he has to satisfy the court that he complied with the provisions of section 12 (9) of the Act. If he fails, the irresistible inference is that his dealings were improper and unlawful. See Archbold, 35th ed., at para. 1012 and Rex v. Oliver [1944] K.B. 68. The learned magistrate, in my view, drew the correct inference from the facts. As to Mr. Berthan Macaulay's second ground, I find no substance in his submissions. On the whole, therefore, I see no reason why I should disturb the finding of the learned magistrate. I would dismiss the appeal as regards counts 5 and 6o I now come to the Attorney-General's appeal against the discharge of the accused by the learned magistrate on counts 7 to 11 inclusive. Each of these counts charged the accused with unlawful possession of quantities of diamonds contrary to section 21 of the Act. That section provides as follows: " A person shaH be guilty of a contravention of this section if he is in possession of diamonds and he fails to prove that he is lawfully in possession of such diamonds." Several provisos follow, one of which, (c), will be considered later. The facts are that the accused was found in possession of four packets of diamonds in his safe at his business premises in Kono (counts 8 to 11) and 26 . also had on deposit at the Government Diamond Office at Kenema another ::cket (count 7). It is conceded that the accused's possession was within a dealing area. Three grounds of appeal are relied upon, namely: (1) That the learned trial magistrate misdirected himself in law in holding that a diamond dealer or the holder of an alluvial diamond dealer's licence cannot be in unlawful possession of diamonds within a dealing area. (2) That the learned trial magistrate misdirected himself as to the law tburden of proof) relating to a charge of unlawful possession of diamonds ~ontrary to the said section 21 in that he failed to call upon the respondent to prove that his possession of the said diamonds was lawful and thereby contrary to law placed the onus and burden on the prosecution to prove that the possession of the said diamonds by the said respondent was unlawful. (3) That the learned trial magistrate erred in law in holding that a diamond dealer is entitled to have in his possession diamonds for any period in a dealing area. As to ground 1, I am of the view that the learned magistrate misdirected himself in law in holding that a licensed dealer cannot be in unlawful possession of diamonds within a dealing area. The authority cited against this prvpcsition was Sierra Leone Finance Co. v. Comptroller of Customs (1959) 16 W.A.C.A. 83 at 84 where Bairamian C.J. said, inter alia: "Thus even the holder of a licence may be called upon to show that the diamonds in his possession are lawfully in his possession-which they cannot be if they came into his possession through a dealing prohibited by section 18." This case is not strictly an authority because what Bairamian C.J. said was merely obiter dicta, yet I think it is a correct statement of the law. l\1y view is the same, namely, that a licensed dealer can be called upon to show that his possession is lawful wherever he is. I do not think, however, that the result of this appeal is staked on this ground. It merely concerns a declaration of what the law is and nothing else. I will now pass on to ground 3 which involves the interpretation of proviso (c). This proviso reads: "Where an area has been declared to be a diamond non-dealing area, the holder of an alluvial diamond dealer's licence shaH not be deemed to be lawfully in possession of diamonds, unless such diamonds have not been in his possession for a period exceeding one month and are in his possession- (i) outside such diamond non-dealing area ; or (ii) within a diamond non-dealing area, under and in accordance with the terms and conditions of a written permit issued to him for tha:t purpose by an area superintendent or, subject to the general or special directions of an area superintendent, by a warden." Whereas the Crown contended that an interpretation in general terms ought to be put to this proviso, counsel for the accused submitted that an interpre­ tation .in particularistic terms was the true intention of the legislature. Accord­ ing to the Crown, what this proviso means, is that a diamond dealer is not lawfully in possession of diamonds unless: 27 s. c. 1963 FAWAZ V. CoM­ MlSSION"",;R OF POLICE. Bankole Jones J. s. c. 1963 FAWAZ v. CoM­ MISSIONER OF PoLICE. Bankole Jones J. (i) Such diamonds have been in his possession not longer than one month from the date of acquisition, and (ii) at the time of apprehension or at the time complained of in the charge such diamonds are in his possession in a deali..ng area or if within a non-dealing area by virtue of a permit. What all this in simple language means, is that the moment a diamond dealer is found in possession of diamonds whether within a dealing area or within a non­ dealing area, his continuous possession from the original date of acquisition must not have exceeded one month in order to be in lawful possession of such diamonds. In addition, he requires a permit if he was found in possession within a non-dealing area. As against this interpretation Mr. Berthan Macaulay submitted that the mischief aimed at by the draftsman is that a dealer should not deal in a non­ dealing area and that, therefore, the period during which he could possess diamonds in that area is limited to one month, and it follows that the proviso ought to be interpreted in accordance with that spirit. His interpretation, therefore, is as follows, namely, that where an area has been declared to be a diamond non-dealing area, the holder of an alluvial diamond dealer's licence, whether he is outside such non-dealing area or within it, shall not be deemed to be lawfully in possession of diamonds in the area unless such diamonds have not been in his possession for a period exceeding one month and are in his possession in accordance with a permit issued for that purpose. The difference between these two interpretations lies in this, namely, that the Crown's contention is that the place where the dealer himself is found is immaterial but that what is material is the place where the diamonds are found. Mr. Berthan Macaulay's contention, on the other hand, is that the proviso relates to the place from which control is exercised over the diamonds in a non-dealing area and that the proviso relates only to a non-dealing area. I think, for myself, that the Crown's interpretation is artificial and untenable and can lead to a number of absurdities. If, for example, a dealer decides to accumulate diamonds lawfully purchased by him for a period of a month before he sets out to sell to an exporter he would find himself in unlawful possession when he attempts to divest himself of his possession to the exporter one day after the expiration of the month ; or again, if a dealer deposits his lawful purchases within a month with the Government Diamond Office at Kenema, a practice which I understand exists, for say two or three months or even longer before he goes back to negotiate a sale, he would be found to be in unlawful possession and so guilty of an offence, because he would not yet have parted with possession according to the definition of the word " posses­ sion " in section 2 of the Act. I therefore prefer to accept the interpretation of Mr. Berthan Macaulay and hold that ground 3 fails. As to ground 2, it was conceded that section 21 of the Act places the burden of proof on an accused person. As I have just said, even the holder of a licence may be called upon to show that the diamonds in his possession are lawfully in his possession. All the prosecution has to prove is first, that the diamonds are rough and uncut and, secondly, that they were found in the possession of the accused. Thereafter the burden shifts and the accused has to satisfy the court that he came by the diamonds in accordance with the provisions of section 12 (9). See John v. Humphreys [1955] 1 W.L.R. 325. The standard of proof is not the same as that required of the prosecution in a criminal case. It is that on the balance of probabilities as in a civil case. 28 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.