Musa v S (CR APP 7 of 1976) [1978] SLCA 2 (3 May 1978)

(ures s.8aLR Masa The Ste 6 MUSA V THE STATE ca COURT OF APPEAL FOR STERRA LEONE, Caimial Apel 7 of 1976, Hon Mr Justice Davies Pl, Hon Me Jase Dring JA, Hon Mr Justice Ware JA, 3 May 1978 {1} Criminal Law and Procedure ~ Appel aginst conviction — Obtaining money by false pretences - Evidence insufficient o sustain a conviction ~ Larceny Act 19165 m0) ‘The appllan, a picecorpn in he Sia Leone Plce Fr, was convicted on a two Count ictent charging him with cbaning money by fae preznces contrary o seton SLI ofthe Larceny Act 1916, and compton contrary 10 ston 31) ofthe Prevention of Comapion Act (Cap 33) respectively. Te fin charge related toa clam that the appellant ‘ scorped T<30 for arcing to remve a village disp fom pice consideration. The esond harge was a clam hat the appelant recived L80 for eaing wo refer acarge of laceny ‘uaa cena pesos ld, per Beccles Davies PS, allowing the appeal:

1. The evidence lad by the prose on bth counts. wasinsfcent to sun 2 Conviction In etion othe ist coun, here was no evidence to prove the falsity of he Slog pescnce made by the appellant The alleged complainant was never cal 0 testify that the appellant was not competent at the time of the alleged offence to receive Conlin nd investigate hm Legislation referred to | Larceny Ac 19165320) | Prevention of Compson Act(Cap33)5 30) Appeal ‘The was an appeal gains conviction of obtining money by alse pretences contrary t0§ SX) of the Laveny Act 1916 and comtion conzary 10 s 31) of the Prevention of Compton Act (Cap 3) The fas apes n he llowing judgment. Aelia person. MES E Berowa forthe Se, [BECCLES DAVIES JA: The appl was convicted on a wo count indictment charging fhm wih cbming money by fase pretences eoary 10 scion 321) ofthe Larceny Act | 1916, and conto conay 10 secon 31) ofthe reverion of Compton Act (Cap 33) respectively. The evidence led by the prosceton was tat while the appellant who was a police corpora inthe Sir Leone Police Force, was on vara leave, he went ta village in Bo ‘District named Sembchun Tabeyma. He went there on 15° January, 1975. The appellant told tome of he Vilage including the Vilage Headman, tht a repr had been mad at Bo Paice Saon by one Madam Janneh. Madam Tanah, acorn (0 the apelin had Copland tag who fad boc nated the Bundo Soi) had been Swiched ver | from the husband who had undergone te ination expen, to anther man and tat Fela | Sandy was eps or tat Flloh Sandy imple te apelnwoage ta etement of the mater ese (lh) was old an id not wih that he matershould be taken to cour. The proscuton went on 10. that te appelant demanded L100 as consideration for removing | F |

q

w Sia Leone Bar Asin Law Reports (197481 SLBALR the matter from Bo Police Station. Felloh Sandy then offered the appellant Le8 which the appellant rejected. Felioh Sandy then increased the amount to Le12 which was again rejected by the appellant as being inadequate. The appellant insisted on having Le40. He eventually accepted L230,

‘The evidence for the prosecution went on furer to state that the appellant had gone (walked) round the Village. During his walk he saw two pairs of trousers and three blankets, which the appellant said were Government propety. One Joe Kannesse claimed owmership and that they had been given to him by his brother-in-law, who was a sergeant in the Police Force in Freetown.

“The appellant denied the charges

‘As regards count 1, the leames judge quite coreetly stated the ingredients necessary to constitute the offence under section 32(1) of the Larceny Act 1916. There is however no evidence to prove the falsity ofthe alleged pretence made by the appellant. The alleged complainant Jannch was never called to testify that appellant was not competent atthe time of ’ the alleged offence to receive complaints and investigate them. When we called upon Mr ‘Berewah for his assistance on tis point, he refered us to the appellants statement in support (of his answer thatthe appellant was on leave and consequently incompetent to investigate ‘complains. What the appellant said in his statement was “I am Police Corporal attached to Bo Police Station. Presently am on annual vacation leave.” That statement was obtained from the appellant on 24 January 1975. The offence was alleged to have been commited on 15° January 1975, when he went on leave was no given in evidence. The conviction and sentence ‘on the first count cannot be sustained in the absence of evidence to prove the falsity of the pretence.

‘The second count charged the appellant with comupty receiving for himself

“Le 80 as reward for showing favour to Joe Kainessie and Mojat to wit to refrain frm.

preferring a charge of larceny agains the said Joe Kainesse and Maju.”

‘The evidence le by the prosecution was that the appellant had seen the laundered 2 pairs ‘of blue tergl trousers and three blankets on a clothesline inthe village. He said he was taking them to Bo Police Station as they were Government property. He (the appellant) in his statement said he was taking them tothe Police as found property. Joe Kainessie and Moijatu claimed ownership and gave the source from which they received the articles as Kainessie's brother-Iaw who was a sergeant inthe Police Force in Freetown. According tote prosecution the appellant demanded! monetary consideration for forbearing to report the mater to Bo Police Station. There was no evidence led to show that Joe Kainesie and Moijatu had stolen the articles, for which the appellants had received a reward “to refain from preferring a charge of ; larceny against the said Joe Kainasse and Moja” as the charge alleged.

‘The evidence on tis count was insufficient to sustain conviction. The convictions and sentences on both counts are accordingly quashed.

‘The fines paid by the appellant are to be retumed to him and verdict of acquital is accordingly recorded on both counts

Re; ted by Victoria Jamina

(1974821 SLBALR Jo vFofana 188 JOHN v FOFANA cA

‘COURT OF APPEAL FOR SIERRA LEONE, Civil Appeal 26 of 1976, Hon Mr Justice S

B Davies JA, Hon Mr Justice § CE Wame JA, Hon Mr Justice F M Shor JA, 26 May 1978

{1) Civil Procedure - Writ of Summons - Application for leave to amend specially indorsed writ - Grant of application to amend converted specially indorsed writ seeking specific performance into a generally indorsed writ alleging fraud ~ Had effect of striking out original statement of claim ~ Original action should have been discontinued and new action instituted with generally indorsed writ — Rules of High Court Order 363)

In February 1976, te plaintiff (respondent) filed a specially indorsed writ of summons under

‘Onder 3r 63) ofthe Rules of High Court against the defendant (appellant) claiming specific

: performance of two agreements made between them relating tothe sale of land. The appellant filed an affidavit in opposition tothe granting ofan onder for specific performance and offering to submit to judgement for a certain amount. The application came for hearing before Williams

‘Jon 6 April 1976 and ordered the appellant to flea furer affidavit regarding his alleged sales

‘of the premises in dispute to a third party, with which the appellant subsequently complied.

"The respondent then filed an affidavit disclosing tha the appellant had sold the property to his

son, who was aware ofthe prior arrangement between the respondent and the appellant. On 11

May 1976 Williams J gave the appellant leave to file a defence within fourteen days and forthe

matter to proceed to tral. No defence was filed by the appellant within the period of fourteen

‘days. By notice of motion on 17 June 1976, the respondent applied forthe appellant's son to be

‘added as a defendant tothe action. This application to amend the writ and join the appellant's

‘on was granted by the tral judge, against which the appellant now appealed.

Held, per Beccles-Davies JA, allowing the appeal:

|. In modem practice, amendments to writs and pleading are liberally granted. A party ‘whose application appears tobe neither frivolous nor lacking in good faith is only refused liberty to amend if to grant it would cause injustice to his opponent. It is within the diseretion of the judge to grant or refuse leave to amend. G L Baker Lad v Medway Building and Supplies Lid (1958) 3 All ER 540 applied.

2. The adding of party to an action is equally wii the discretion ofthe judge. The Court of ‘Appeal will not interfere with that discretior anless it is satisfied that tral judge erred in | principle and the trial judge's conclusion was one that involves injustice or was wrong. Beck ¥ Value Capital (No 2)(1976)2 AlLER 102 applied.

3. The judge did not consider that by granting the amended rit what was originally a | specially indorsed writ was converted into a generally indorsed writ alleging fraud. The ‘new allegation of fraud could net fit into the specially indorsed wrt issued under Onder 3 | 16(3) asthe appropriate wrt would have been a generally indorsed one.

4. The judge was wrong to have granted the application. By granting the application to amend, the judge: (a) by implication struck out the statement of claim in the specially indorsed writ (b) gave liberty tothe appellant and the added defendant to puta defence to the action when a statement of claim on the generally indorsed writ had not been filed; (©) nullified his order of 11 May granting the defendant leave to file a defence; (4) having done this, then proceeded to panally revive it. The postion could easily have been set right by the respondents solicitor discontinuing the action and commencing a new action with a generaiy indorsed writ

Sioma zoe Bar Asin Law Rens (19748211 SLBALR Cass rfereto : Beck Value Capital (No 2) (1976) 2 AILER 102 GL Baker Led v Mein Bulding and Supplies Lid (1958) 3 AILER 540 Legislation referred to Rates ofthe High Cour, Order 3 r

(3) Appeal “Ths was an appeal from an order made by Wiliams Jon the 30th June 1976, granting the respondent leave to amend his writ of summons. The fact appear isthe following judgement. MrAJA Lewis forthe appellant. MrM R O Garber forthe respondent. BECCLES-DAVIES JA: This appeal rss out ofan order made by Williams J, granting the respondent leave to amend his Wri of Summons. The orders ated 30" June, 1976 :

1 wil now stout the facts. Madam Marie Fofan (io whom I shal hereafter refer a the respondent) through her solicitors issued specially indorsed writ of summons against Mr Sullay John (o whom { shall hereafter refer as the appella) claiming specific perfomance of {wo agrements made between them (the apellan andthe respond eating tothe sale ‘of cerain premises at Sand Sb Crowther Set, Frectow oaltemativly the retum ofthe toa purchase pice of 122,180; and damages. The writ was ssoed in February. 1976

[No appearance was entered tothe writ by oon behalf ofthe appellant. The respondent's solicitor wh out amon for judgment dated 23" March, 1976. The ground ofthe application being that “the defendant has no defense to the said action.” The motion was to be heard on 6* April, 1976. The appellant's solicitor meanwhile entered an appearance to the writ on 26° March

(n 30% Marc, the appellant's solicitor fled an affidavit in positon tothe granting of an owt for specific performance, and offering o submit to judgment forthe amount of 21.102 50 cepesening the differences between the allematve claims of Le2.02.50 less 11.3000 rents alleged to have been cllced bythe respondent). The appellant's reason being that he had sold the premises to someone else, asthe respondent vas in breach of the Agreement between them In paragraphs 5 6 and 7 ofthe affidavit he appellant si

“5, That Iam not now the fee simple owner of the premises of which specifi formance is sought to be ordered as Thave executed a Deed of Conveyance of the same ta purchaser thereon,

6 That prior othe sid Deed of Conveyance I had in fact entered into an agreement svt the plan forte sale ofthe premises to her. The agreement was that she rou ey the amount which was not the commercial vale ofthe propery in eum Tore undertaking to mainn me forthe rest of my fe. Consequertly we fixed & tional figure forthe cost ofthe premises The money was tendered in small and ireglar instalments and in some cases by the delivery of fod w me such as sat Sugar white rice. prboiled rice, and brandy. The balance ofthe tems inlsive of the money tolled the notonal igure forthe sae. Thereafter the pai refused to mama he side ofthe bargain. Accordingly {offered the premises to somebody ‘lke whohad assumed the same responsibility

7. signed the two receipts which were tendered 10 me by the plaintiff on different dates she had asked me to do so and fel cbiged in honor ove her receipts as

The pages read for this report end here. The judgment continues in the PDF.