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Counsel for accused deprived of last word-Same Counsel appearing Appeal from for all three accused-Misdirection- Verdict against weight of evidence.

The three appellants were convicted of the murder of one Jassa. One' counsel appeared for all three appellants who were jointly indicted. Neither the first nor the third appellant called any witnesses but one witness was called for the defence who gave evidence to the effect that the case for the prosecution was a trumped up story. This evidence affected all the accused. The Crown was given the final word and it was argued that the trial was thereby irregular. It was also argued that there was misdirection and that the verdict was against the weight of evidence.

Held: That where one Counsel appeared for all accused and called evidence for the defence, it was impossible to say that he called evidence for one accused only and not for them all. Each case must be judged by its special circumstances and, in this case, the learned Trial Judge was correct in giving the Crown the final word.

This is an appeal from the judgment of the learned Chief Justice of Sierra Leone convicting the three appellants of the murder of a woman Jassa some four years ago. On one only of the grounds of appeal which were put before us did we think it necessary to call upon Counsel for the Crown; it was to the effect that the trial of appellants Siaffa Kawonie (No.3) and Vandi Gbou (N o. 1) was irregular because their Counsel was deprived of the last word, neither of these appellants having called any witnesses. We consider that there is no merit in this argument because where as in this case one Counsel appeared for all three accused who were jointly indicted and where he called evidence for the defence, it is impossible to say that he called that evidence for one accused only and not for them all. Further in this case the defence witness Morna Jonni gave evidence to show that the case for the prosecution was a trumped-up story which amounted to a conspiracy against all the accused.

He must therefore be considered a witness for all the accused.

It has be-en said in Rex v. Burns and others 16 Cox. p. 195 that each case must be judged by its special circumstances. We think that the right course was adopted here of giving the Crown the final word.

A case such as this can be differentiated from R. v. Burns (already cited) where a separate Counsel appeared for each accused and where the Counsel for the prisoners who called no witnesses had the right to address the jury last.

Of the other grounds, we think that the learned trial Judge was justified in putting it to the Assessors that the accused may have taken part in the crime as members of a Secret Society. In point of fact there is no finding by the Judge on this particular point.

His finding was· that the 3 appellants were principals in the second degree.

We do not think that there is any substance in the contention that the prosecution tailed to establish common purpose.

As regards the argument that there was misdirection as to 'the effect of the alibi which was sought to be proved by appellant Musa, we think that this was adequately dealt with in his summing up by the learned trial Judge.

His finding was that he did not believe it, and we see no reason to differ from this view.

Another point raised for the appellants was that there was misdirection as to the corroboration of the two prosecution witnesses Siaffa Wongo and Samei. This was very fully and adequately dealt with in the summing up and we agree with the conclusions on this point.

There was a general ground of appeal put forward that the verdict was against the weight of evidence.

On this point it was argued that there were discrepancies, particularly as to the time of the killing of J assa, which were sufficiently grave to invalidate the conviction.

The discrepancies and the peculiar circumstances of this case, whereby the crime was not reported to the authorities, because of the state of opinion in the locality, were fully considered in the summing up and the judgment and after consideration we do not agree that the verdict was against the weight of evidence.

The appeals are dismissed and the convictions upheld.

Freetown, 21st March, 1939.

COR. KINGDON, PETRIDES AND WEBB, C.JJ.

THOMAS C. THOMPSON & ANOR .••• Plaintiffs-Appellants. v.

P. BRAVO JONES .................................. Defendant-Respondent.

Administration of Estates Act (1833)-Execution against Real Property Ordinance, 1924, (Cap. 61)-Legal and Iqititable assets-Executors of a mortgagor of real property entitled to redeem.

The plaintiffs-appellants were the executors of one Joseph William ,Pratt. The deceased had mortgaged real property to the respondent. The principal money, interest, and expenses due were paid under the mortgage and the plaintiffs claimed a re-conveyance. It was held in the Supreme Court that section 3 of Cap. 61 did not give the executors any interest in the real estate of their testator and the claim was dismissed.

Held: (Reversing the decision of the Supreme Court) that section 3 of Cap. 61 added to the existing category of assets to be administered by the personal representative and made real estate •• legal assets"; and that the plaintiffs were entitled to a re-conveyance of the real property mortgaged.

Appeal allowed, and respondent ordered· to re-convey to appellants the property in dispute.

Cases cited :-AUorney..(;eneral versus Brunning (11 E.R. 242).

O. I. During for Appellants. R. B. Marke for Res·pondent.

The following judgments were delivered :WEBB, CHIEF JUSTICE, SIERRA LEONE.

This was an action brought by the executors of Joseph William Pratt against the respondent as mortgagee of Freehold lands mortgaged to him by the deceased.

The claim on the writ states (and it was admitted) that the principal money, interest and expenses due under the mortgage had been paid before action, and the plaintiffs claim~d are-conveyance.

The ground upon which the claim has been resisted is that the executors of a mortgagor of freehold property are not entitled to redeem, and this argument found favour with the learned] udge in the Court below, who held that the effect of Sec. 3 of Cap. 61 of the laws of Sierra Leone was the same as that of Sec. 1 (1) of the Administration of Estates Act, 1833, and as that Act did not give executors any interest in the real estate of their testator neither did the Ordinance.

I find myself unable to agree with this view.

In my opinion the question has to be considered with reference to the law of Sierra Leone in 1906, when Cap. 61 came into force, as contrasted with the law of England in 1833, and of course, the wording of the relative sections of the Act and of the Ordinance must be compared.

Appeal Court,

21st March, 1939.

Appeal from judgment

of Supreme Court.

Thompson & anor.

] ones

Webb, C.].

Thompson 0- anor. v. Jones.

Before the passing of the Administration of Estates Act, 1833, freehold lands, broadly speaking, were not liable to the debts of their deceased owner, but passed, free from them, to his devisee, if he had made a will, or to his heir-at-Iaw, if he died intestate. Section 1 (1) of the Act is as follows :-" When any person shall die seised of or entitled to any estate or interest in lands, tenements, or hereditaments ... or other real estate ... which he shall not by his last will have charged with or devised subject to the ptlyment of his debts, the same shall be assets to be administered/in courts of equity for the payment of the just debts of such periions ... and the heir or heirs-at-Iaw ... devisee or devisees of such debtor shall be liable to all the same suits in equity at the iuit of any of the creditors of such debtor ... as the heirs, etc.; of any person who died seised of freehold estates were before the passing of this Act liable to in respect of such freehold estates at the suit of creditors by speciality in which the heirs were bound ... "

It will be noted that the section makes freehold lands •• assets to be administered in Courts of Equity" and that it specifically provides that the persons who are made liable to the claims of creditors are, not the personal representatives of the deceased, but the heir-at-Iaw or the devisee. And it is well established that the effect of this Act was to make freehold land equitable, and not legal assets; that is to say assets which a creditor could make available only by taking proceedings for administration in a Court of Equity. (See Halsbury, 1st Ed. XIV, 245 ; Williams Executors 11th Ed. II, 1290) .•• Legal assets," on the other hand are such property of the deceased as comes into the hands of the personal representative virtute officii, or, as it is put by Story (Eng. Ed.) 357, •• what he is entrusted with by law to dispose of in the course of administration"; and where a personal representative has •• legal assets " in his hands a creditor of the deceased can sue him at law.

By virtue of section 8 of the Supreme Court Ordinance, 1904, (corresponding to section 6 of the present Supreme Court Ordinance. No. 39/1932), the Administration of Estates Act, 1833, was in force in Sierra Leone, and one must assume that the legislature was aware of this when Cap. 61, .. An Ordinance subjecting Real Estate to the payment of Debts," was passed in 1906-0ne may therefore assume, further, that section 3 of Cap. 61 was intended to make some alteration or addition to the existing law. That section is as· follows :-When any person shall die seised of or entitled to any estate or interest in lands, tenements, hereditaments, or other real estate which he shall not by his last will have charged with, or devised subject to, or for the payment of, his debts, the same shall be assets to be administered for the payment of all just debts of such person."

Here. it will be observed, there is no mention of •• administration in Courts of Equity" or .• by the Supreme Court in its

Thompson G anor. v. Jones.

equitable jurisdiction" and no particular specification of the person who is made liable to answer the claims of creditors, but real estate is simply declared to be " assets to be administered for the payment of all just debts." To my mind the natural meaning of these words is that these" new assets" (as I may call them) are to be regarded as something added to the existing category of assets, to be liable to the payment of debts in the same way and to the same extent, and to be administered by the same hand, that is, by the personal representative, executors or administrator, as the case may be. That is to say. in my view, section 3 of Cap. 61 makes real estate here " legal assets." And I think that this view is strengthened by the fact that as the law of Sierra Leone stood in 1906, and as it still is, the real estate of a deceased intestate vests in the "curator of Intestate Estates pending the appointment of an administrator, and does not descend to theheir-at-Iaw but is distributable as personalty (Cap. 104, sees. 11, 12, 13). Thus, if my view is correct, Cap. 61 had the effect of bringing the law in Sierra Leone as regards the real estate of a deceased testator into line with that regarding the real estate of a deceased intestate. In the case of A.G. v. Brunning (8 H.L.e. 243, 11 E.R. 242) Lord Cranworth said: "With all deference to the Court of Exchequer, I think that Court fell into an error in treating this money" (part of the purchase price of real estate sold by the testator in his lifetime) " as being equitable assets. It is a sum which the executor would take as executor, and which, therefore, would be legal assets in his hands. His right would not depend on anything contained in the will of Mr. Hope. Mr. Hope's administrator would have been entitled in case he had died intestate; and what an administrator is entitled to recover as administrator, virtute o.fficii, can never be equitable assets." If then, real estate is made legal assets by section 3 of Cap. 61 the result follows that an unsatisfied creditor of the testator could sue the appellants at law, and they, if they had failed to get in this mortgaged property, could not plead a plene administravit, but would be held liable on an allegation of devastavit •. it is therefore clear, in my judgment, that they have the right to recover it.

For the above reasons I am of opinion that the decision of the Court below was wrong and should be reversed and that there should be judgment for the appellants ordering the respondent to re-convey the premises to the appellants at their expense, and to pay them their taxed costs of the proceedings here and in the Court below.

KINGDON, C.J., NIGERIA I concur.

PETRIDES, C.]., GOLD COAST I concur.

Thompson ' & anor.

] ones

Webb, c.].

Thompson & anor.

v_o

} ones

Webb, Co} 0

Thompson & anoy. v. Jones.

The following Order was made :-

The appeal·is allowed and the judgment of the Court below, including the Order as to costs, is set aside and it is ordered that the Respondent do re-convey to the Appellants, at their expense, all that plot, piece or parcel of land situate lying and being in Charles Street, Freetown, in the Colony of Sierra Leone and numbered 23 for the purposes of rates and taxes and do pay to the Appellants their taxed costs of the proceedings in this Court and in the 'Court below 0