Regina v Amadu B. Chirm (CR APP 29 of 1963) [1963] SLCA 1248 (11 December 1963)

It should be noted that the question whether (as the third respondent said) or not (as the appellant said) the appellant was given notice to quit, and whether or not the notice was a valid one, were not issues arising on the pleadings. The appellant's case in the court below was, and it was his argument before this court, that his own conveyance of the property to Mr. King was of no effect and " did not vest the ownership of the property in dispute to Joseph Emanuel King through whom the plaintiffs claimed." Now it may be (I do not say that it is) that, if the respondents were to sell the property to someone, they might (I do not say that they would) run into difficulty in making a title which would satisfy the purchaser. But, in my opinion, that does not matter in this case. In this case we are concerned with the situation of the respondents vis-a-vis the appellant. It was he who agreed to sell the property to Mr. King, and who arranged for the trustees said to have been appointed by the court to whom Mr. King paid the purchase price, and who purported to convey (and perhaps did convey) the legal estate to Mr. King, and who attorned tenant to Mr. King and paid rent to him for several years, and who seven months after his death promised to pay arrears of rent, which included the month of Mr. King's death and six months after it. How can he be allowed now to say to the respondents " The property is not yours ; it never was your father's ; therefore, it has always been mine ; and I cannot be turned out." For that is what it comes to. In my opinion, it is impossible on any principle to allow him to say so now. The appellant gave some evidence which, I think, is indicative of what went on in his mind. He said that Mr. King " had agreed to reconvey " the property to him when he had paid (meaning by way of rent) the £560 purchase­ money which Mr. King had paid, and " ... I say that because of my agree­ ment with Mr. King I am in lawful possession." That is probably his real grievance. Even when expressing it in words in the witness box, his use of the word " reconvey " implies that he was not then impugning the validity of his own sale and conveyance of the legal estate to Mr. King. He was asserting a collateral agreement to reconvey it to him. There was no proof of any such agreement to reconvey and it was not pleaded, and it is not necessary to consider what effect it might have had. Consequently, the appellant had to look around for other grounds on which to fight the respondents' action and chose a ground which, in my opinion, was not open to him. I would dismiss the appeal. (COURT OF APPEAL] REGINA Respondent v. AMADU BUNDUKA CHIRM Appellant [Criminal Appeal 29/63] Criminal Law--Obtaining money by false pretence-Whether persons who handed over money were influenced by false pretence-Whether. defendant honestly believed that pretence wa.s true-False pretence neces~Qry ingredient of offence contrary to s. 32 (2) of Larceny Act, 1916. Defendant was charged on three counts. Counts one and two charged him with obtaining money by false pretences, and count three charged him with an 171 C. A. 1963 &on V. JOLLY. Ames Ag.P. Freetown Dec. 11, 1963. Ames Ag.P .• Dove-Edwin 1.A., Cole ,Aa.C.J. c. A. 1963 REG. v. OriRM. Ame8 Aa.P. offence contrary to section 32 (2) of the Larceny Act. The false pretence alleged in count one was that defendant falsely pretended to be the lawful husband of one Yabome Bangura according to native law and custom and her sole survivor; and in count two that he was the lawful husband of Bangura and her personal representative. Count three did not allege any false pretence. The jury convicted defendant on all three counts. Held, allowing the appeal, {1) that there was no satisfactory proof that the two . persons who handed over the money to defendant were influenced by the false pretences alleged in counts one and two; (2) That the judge erred by omitting from his summing-up the question of whether defendant honestly believed that the alleged false pretence was true; and (3) That a false pretence is a necessary ingredient of an offence under section 32 (2) of the Larceny Act, 1916. Edward J. McConnack for the appellant. E. Titus E. Fewry for the respondent. AMES Ao.P. An amendment of the particulars of offence in CQunt 1 was allowed. Objection was made at the time, and the same argument was put to us, namely, that the amendment was such as to substitute a different offence. It is not necessary to consider the objection, because assuming that the amend­ ment was a proper one to allow, which it may have been, we are agreed that the appeal must be allowed. Counts 1 and 2 charged the appellant with obtaining money by false pre­ tences. In neither case was there satisfactory proof that the two persons who handed over the money, respectively, were influenced by the so-called false pretence. Neither was a witness ; which made it more difficult to show whether or not they were so influenced. And in count l, it seemed at least equally probable that he was not so influenced. The false pretence alleged in count 1 was that the appellant falsely pre­ tended to be the lawful husband of the said Yabome Bangura according to native law and custom (that is how it was after the amendment) and her sole survivor; and in count 2 that he was the lawful husband of the said Yabome Bangura and her personal representative. So a question of fact which the jury had to decide was whether or not the appellant was married to the woman according to Temne customary law. There was a lot of evidence as to this, some went to show that he was not, but some supported his claim that he was. The jury convicted him, which shows that they found that he was not. But there was another and equally important question which appears to have been overlooked in the summing-up, namely, even supposing that he was not properly married according to Temne law, did he honestly believe that he was? It may very well be that he did. The offence charged in count 3 was an offence against section 32 (2) of the Larceny Act. A false pretence is a necessary ingredient of that offence, and the count did not allege any false pretence. It is difficult to see what false pretence there could have been~ertainly not the same sort as that of counts 1 and 2. This count was bad in law from the start, as Mr. Fewry, for the Crown, had to admit. The convictions on all three counts are quashed and it is directed that verdicts of acquittal be entered instead. 172