Regina v Arthur B.O Williams (IC 12 of 1963) [1963] SLSC 47 (2 July 1963)

aughter, who repeated it to her fiance, who thereupon broke off the her d nt The Court of Appeal held that the damage was remote. gageme · en Tl , House of Lords in W eld-Blundell v. Stephens [1920] A. C. 956 approved d~~t in Ward v. Weeks, and said that Ward v. Weeks, though decided over •he !C a . d ... d ~d years ago, was still goo law. ~ hun r .. " - A lying the dicta of these cases to the case now before me I must hold that ,_ ~pas no moral duty on the part of the plaintiff to repeat the words uttered :ue~e,: husband, nor was it a natural consequence of the defendant's having ' 0 • ·:d them for the plaintiff to repeat them. And as a result I must further uttle~"•ha-t the special damage alleged in this case is too remote to render the ho~a h.i ~;ords actionable. · In the result this action is dismissed out of this court with costs to be taxed and paid by the plaintiff to the defendant. [SUPREME COURT] REGINA v. ARTIIUR B. 0. WILLIAMS [Information No. 12 of 1963] Criminal Law-Forgery-Intent to defraud-Knowledge. of JahiJY-Circumstanti€il evidence-Evidence as to handwriting--ldent.i~ of person whose lu:mdwriiin.g is forged-Uttering-Forgery Act, 1913 (3 & 4 Geo. 5, c. 27) (Vol. l, Laws of Sierra Leone, 1960, p. 200), ss. 1, 2, 6. Defendant was ctarged with forgery and uttering a forged document contrary to sections 2 (1) and 6 of the Forgery Act, 1913. It was alleged that defendant, on or about March 30, 1957, "with intent to defraud, forged a certain will purporting to be the will of the late E. E. Williams (hi.s. father)" and that,. on or about April 27, 1960, he "uttered a certain forged will purporting to be the will of the late E. E. Williams." The evidence for the prosecution was as follows: Charles B. Davies, a friend of the family, testified that, sometime after testator's death on April 27, 1960, he was invited by defendant to go to a house at 32, Kissy Street, Freetown, to hear the reading of the will of E. E. Williams (the testator). He said that the will he read on that occasion was not the same as the will which was later admitted to probate (Exh. " A ") but he went on to say, " I cannot say I am familiar with the late Mr. Williams' signature." Reuben K. 0. Williams, defendant's younger brother, also testified that the will which was read at 32, Kissy Street was not the same as Exhibit "A." He said that the signature on Exhibit " A" was not that of the testator, although it was similar. At the close of the prosecution's case, counsel for the defendant submitted that there was no case for the defendant to answer. Held, directing a verdict of not guilty, that the evidence that Exhibit" A" was forged was insufficient to go to the jury. Kanja A. Daramy and lames E. Mackay for the Queen. Edwrml I. McCormack for the defendant. 37 s. c. 1963 JOHNSON v. SMITH. Marke 1. Freetown July 2, 1963 Luke Ag.I. s. c. 1963 REo. v. ARTHtiR B. 0. WILUAMS. Luke Ag.J. LUKE Ao.J. At the close of the case for the prosecution counsel for the accused submitted to the court that there was no case for the accused to answer and in support stated that one of t.1.e prosecution's witnesses (P.W. 1) tendered the probated will as Exhibit "A " and also that up to the time he was giving evidence the probate granted had not been revoked and, as such, it remains valid. He further submitted that once a will has been probated it is conclusive evidence of the validity and making of the will. He referred to the attestative clause to which two witnesses appended their signatures. One of these attesting witnesses swore to an affidavit stating that the signature which appears on page 5 of the will was his signature. The prosecution then called a Mr. Charles Beccles Davies, who stated that he was invited by the accused some time after the death of the testator to go to the house at 32, Kissy Street to hear the testator's will read and that when he got there he was handed the will to read. He then deposed that the will which forms part of Exhibit " A " which is now before the court was not the one he read. He said that the one he read was a typewritten document on a writing-pad paper and that the signature on that document was signed by somebody, and he went on to say, "I cannot say I am familiar with the late Mr. Williams' signature:· Under cross-examination he maintained that he read the will but said that the wiil he saw in court was not the one. He then went on to say he did not read the name of the testator on that wilL " I just can't tell the date of the will." He further said, "there were no witnesses to the will," which he sub­ sequentiy corrected by saying, "I now say I can't remember if there were witnesses to the will. I don't know if there was an attestative clause." He further said, " At the back of the will which was given to me to read I saw the word ' codicil ' which was signed by somebody." He went on to say he read all that was given to him to read (will and codicii) but he did not know if it was signed by the testator or if it was witnessed. He also stated that the will he read was on a writing-block pad. Another of the Crown's witnes-ses (P.W. 4) said he saw the will when it was produced by the accused, but he could not say whether the will was passed round. He went on to say: "I can't say if this is the will as the will which I suppose I saw was something large. The will which is now shown to me is large." Under cross-examination he said: "I am acquainted with the signature of the testator, who was my paternal uncle. Looking at page 5 I say that signature appears as that of his." The next witness called was P.W. 5, who is the younger brother of the accused (same father and mother). He deposed that his father died at Onitsha on April 27, 1960, and that after his death he and others were summoned to a family meeting at 32, Kissy Street. That before the will was read it was not passed round for inspection and scrutiny. Tnat when the will was handed to Beccles Davies to read he got up from where he sat and went and looked at it. That after the will had been read he took his hat, said goodnight and walked away. That in the morning he went to the accused and requested him to call another family meeting but that the request was not granted. That on the night of this will reading he observed the signatures on the wills and two codicils. That on that particular night when the wiil was read he said nothing and the three reasons he gave for wanting another family meeting convened, apart from being dissatisfied with preparation, were: (1) There were many questionable things such as no numbering of pages of will. (2) There were 38 . . 1 nd duplicate of will put together. (3) The paper was prematurely ongma. a~ o!dH: then went on to say that after the will was probated he applied for a ~e d got it. That he exatnined the original will probated and he is coPY an with his father's signature and that on page 5 he saw a signature therem , h went on further to say that the signature is not that of his late father. ;na ~ed his evidence-in-chief by saying: "I did not come off in this will as I ~e e~~pecting, although some of my other brothers fared worse off than m~." ,,asU der cross-examination he said that he had a copy of the will from the ccus:d before the will was pro bated. "I don't think the copy of the w1H a ~., ed gave me was what he read to us at the meeting." He went on to ~~""7, After the will was probated I went and examined the original and found ~;~as quite another thing and not what_ had been re~d. Comparing the copy of the will accused gave me and t~e certified copy which was p~obated there 1s no difference." P.W. 5 further said that when he went to Omtsha for a few months he heard about three people called by the name of 0. Karamadu, ~~d in the magistrates' court said: "I remember saying after the names of the subscribing witnesses had been read to me that I knew one of them." In this court he now says that be does not believe these two attesting witnesses saw his father sign the will and that the accused and two attesting witnesses con­ spired to forge his father's will. In answer to a question put to him by the court he said: " Looking at page 5 I see the signature E. E. Williams. It is similar but it is not my father's signature." The other two witnesses called, who were police officers, did not take the case any further as they carried out no investigations of the case before arresting the accused. In a criminal prosecution the burden of proof is always on the prosecution except in those cases where a statute shifts it. This is not one of them. What had the prosecution to prove in such a case? First of all, forgery is the making of a false document in order that it may be used as genuine. A document is faise within the meaning of the Forgery Act if the whole or any material part thereof purports to be made by or on behalf or on account of a person who did not make it or authorise its making or if the whole or some material part of it purports to be made by or on behalf of a fictitious or deceased person. For forgery to constitute an offence there must be an intent to defraud or deceive. This charge is under section 2 (1) and an intent to defraud is necessary. The prosecution should also prove knowledge of the falsity. It is agreed that this is not capable of direct proof. It is in nearly ail cases proved by evidence of facts from which the jury may presume it. This is generally done by p~~;~ptive or circumstantial evidence. Dealing with presumptive evidence Arcbbold (35th ed.) has this to say in paragraph 1141 : '' · . . In criminal cases, the possibility of proving the matter charged by the direct and positive testimony of eye-witnesses or by conclusive docu­ ments is much more rare than in civil cases ; and where such testimony is .not available, the jury are permitted to infer from the facts proved other facts necessary to complete the elements of guilt or establish innocence. It has been said that although presumptive evidence must, from necessity, he admitted, yet it should be ad..-nitted cautiously." Evidence may be given of other transactions which have some nexus or connection with the offence charged whether the evidence concerns previous or &Ubsequent acts to show a guilty mind or to rebut a defence of the prisoner. 39 s. c. 1963 REG. v. ARTHuR B. 0. WII.L!AMS. Luke Ag.J. s. c. 1963 REo. v. ARTHUR B. 0. WnLIAMS. Luke Ag.J. Freetown July 5, 1963 Bankole Jone• Ag.C.J. Handwriting: This is done by persons acquainted with his handwriting either by seeing him write or from being in the habit of corresponding with him. Comparison of a disputed writing with any writing proved to the satis­ faction of the judge to be genuine shaH be permitted to be made by witnesses; and such writing and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. Methods of proof: (1) By person having knowledge of it; (2) comparison; (3) expert; (4) presumption. This has not been done in the present case. Identity of person whose handwriting is forged: Evidence must be given of the identity of the person whose handwriting is alleged to be forged, i.e., it must be proved expressly or from circumstances that the alleged forgery was intended to represent the handwriting of the person whose handwriting it is proved not to be. The second count in the information is uttering. Uttering is the tendering of a document as genuine by a person who has forged it or knows it is a forgery. If there is no forgery there can be no uttering of a forged document. Having shown that prosecution has not led evidence to establish that the will in Exhibit " A " is a forged document prosecution cannot support the second count in this information. Accused having been delivered to you to see whether the information under which he is charged has been proved and, that not having been done, I now direct you to return a verdict of not guilty on both counts. [SUPREME COl.iRT] SANTIGIE KAMARA . Plaintiff v. THOMAS DANIEL BULL Defendant [C.C. 55/63] Tort-Negligent operatian of automobile-Claim for pain, sufJering and permanent disability-Res ipsa loquitur-Exercise of reasonable care by defendant­ Damages. Plaintiff was standing on the pavement over a: ditch beside the Freetown­ Weliington road. Defendant drove his automobile past a stopped lorry on his right, struck and killed a third man and then veered to the side of the road, striking the plaintiff and knocking him into the ditch. Plaintiff sustained severe injuries. Held, for the plaintiff, (1) that the doctrine of res ipsa loquitur was appli­ cable, and, therefore that defendant had to prove affirmatively that he had exercised ail reasonable care in the circumstances : (2) that defendant drove his automobile at an unreasonable speed, thus negligently causing plaintiff's injuries; and (3) that plaintiff sustained general damages of £2,500 and special damages of £401 5s. Note: The decision in this case was upheld by the Court of Appeal on December 10, 1963 (Civ.App. 19/63). 40