Court convicts three parties for false land sale declaration where husband aided wife's inflated price statement.

[*228] 1972 May 15

(PIKIS, D. J.)

IN THE DISTRICT COURT OF FAMAGUSTA

Police,

v.

Zalihe Houssein Mehmet and 2 others,

Accused.

(Case No. 1895/72).

Criminal Law - False declaration - Section 117 of the Criminal Code, Cap. 154 - Ingredients and implications of the offence - Materiality of statement - Statement before Lands Office concerning sale price of land -- A material statement for the purposes of a declaration - Vendor and purchaser declaring a higher price than the one the land was actually sold - Vendors husband directly encouraging, aiding and abetting the making of the declaration

- All three found guilty as charged.

Criminal Procedure - Trial in Criminal Cases - Joint trial - Desirability of having a joint trial of persons jointly charged.

False declaration - See, under “Criminal Law”.

Joint trial - See under “Criminal Procedure”.

Police Sergeant Hji Cristos, for the Prosecution.

O. Mehmet, for the Accused.

JUDGMENT

The following judgment was delivered by: -

PIKIS, D.J.: The accused, all three of [*229] them, are charged on a count of making a false declaration, contrary to sections 117, 20 and 35 of the Criminal Code, Cap. 154. On the 20th October, 1971 accused 1, the wife of accused 2, made a declaration of sale before the Famagusta Lands Office whereby she declared the sale of her share in a plot of land and a well situate at Ayios Andronicos village. It was declared that her share in the land was sold for £900 and her share in the well for £100-£1,000 in all. It is the case for the prosecution that this declaration is false in that the actual sale price of the aforesaid property was £300 and not £1,000. It is an admitted fact that accused 2 was the person who negotiated the sale with accused 3, the husband of his sister, and was present at the time of the declaration and he himself confirmed to the responsible official of the L.R.O, that the contents of the declaration and in particular the sale price, was correctly stated.

The accused denied the accusation and maintained before me on oath that the sale price was £1,000 as stated in exhibit 2(1), the declaration they made before the L.R.O.

The declaration was made before Vassos Papademetriou, P.W.3, a clerk at the Lands Office, Famagusta, who accepted it on being assured by the parties to the declaration that its contents, including the statement as to the sale price, was correct. The declaration, exhibit 2(1), had earlier been prepared by Mustafa Mehmet, P.W. 2, an advocate’s clerk in the office of advocate Osman Mehmet, who filled it in on information supplied and affirmed by all three accused. [*230] What falls to he decided factually is whether the declaration made by accused 1 and 3, the parties to the declaration, that the subject property was sold for £1,000 is false and if so the part played by accused 2, himself not a party to the declaration, in the making of such a false declaration if that is found to be the case.

Before going to the facts of the case I shall examine the ingredients and implications of the offence created by Section 117 of Capo 15k and then consider the implication of a joint trial and the perspective in which the evidence must be received and examined.

Section 117 provides, inter alia, that it is a misdemeanor for anyone to make a false declaration before a person authorised to receive a declaration under such circumstances that if the false declaration was made in the course of judicial proceedings, it would have amounted to perjury. In accordance with the provisions of section 110(1), the perjury section, for the statement of a person to come within the ambit of this section of the law, a witness in judicial proceedings, any falsehood in his statement must be within his knowledge and secondly the falsehood must touch something which is material to the determination of any question arising in the proceedings or intended to be raised in the proceedings. Therefore, by analogy, the falsehood envisaged by section 117, contained in a declaration, must be of material consequence for the determination of any matter sought to be effected by the declaration. Therefore, the purpose for which the declaration is made and [*231] the object sought to be achieved thereby are the relevant factors in the light of which the Court will decide the materiality of any statement made in the declaration.

In England materiality in the context of the Forgery Act, 1911 is a question of law for the judge. In Cyprus the matter is not regulated by statute, perhaps wisely so as there is no jury, but it would seem to me that the question of materiality is one of mixed law and fact. One must first decide, as a matter of law, what are the material aspects of a given inquiry in the case of forgery, or a declaration under section 117, Cap. 154 and then decide as a matter of fact whether the statement, in the circumstances and context in which it has been made, has a direct bearing on the determination of the material aspects of the inquiry or declaration under consideration. Whereas statements made by a witness, in the course of a criminal trial, on a matter affecting his credit are ordinarily consequential as they affect the weight that may be given to his testimony, a false statement made in the course of a criminal trial, by the accused whilst testifying, relating to antecedents, of the distant past, has been held immaterial as it could not possibly because of the age gap and nature of antecedents affect the weight that the jury might accord to his testimony – See R. v. Sweet-Escort

(1971) 55 Cr. App. Rep. 316.

On any view of the implications of a sale declaration, before the Lands Office, a statement concerning the sale price is a material statement for the purposes of a declaration. It is material for a variety of reasons, [*232] amongst which, the assessment of the transfer fees payable and where the sale concerns an undivided share in land the determination of the rights of a co-owner who may decide to exercise the statutory option.

I rule that the statement contained in exhibit 1, the declaration of sale made before the Famagusta Lands Office on 20.10.1971 regarding the sale price was a material statement for the purposes of the declaration.

The accused are jointly charged and have been jointly tried. As a matter of general principle it is desirable that persons who are jointly charged, should be tried jointly. This is in the public interest and the ascertainment of truth. (See R. v. Hoggins & Others

(1967) 3 All E.R. 334) Common questions of fact and law are resolved in one spell instead of having a multiplicity of proceedings. Very often it happens in a joint trial, that the same evidence is not admissible against all the accused. Care must therefore be taken, where damaging evidence is admitted that would not otherwise be admissible against any co-accused, not to allow such evidence to affect the Outcome of the case of the accused against whom such evidence is not admissible. (See R. v. Andrews Weatherfoil Ltd.

(1972) 1 All E.R. 65). The likelihood of prejudice to the accused, on this score, is small where trial is before a judge, sitting alone, who can be expected to appreciate evidence in its proper perspective.

Accused 1, the vendor, on two occasions after making the subject declaration made written statements [*233] wherein she admits that the land was sold for £500 and not £1,000 as they declared in exhibit 1. The first is a statement to the police, made under caution to P.S. Pavlides, P.W.6, on 26.10.1971, No objection has been taken to the admissibility of this statement and no suggestion has been made that it was obtained in circumstances casting doubts on its voluntariness. In this statement accused 1 says that the two plots were sold for £1500 and in particular the subject plot was bold for £500. She expresses the reservation that this was her understanding, on 26.10.1971 six days after transfer, unless her husband received more money that she came to know of. By this statement the accused supports the testimony of her brother and co-owner, P.W.1, who maintained that his sister told him long before that the two plots had been sold to accused 3 for £1500. In her testimony, before the Court, accused 1 disputed the correctness of the contents of her statement to the police, exhibit 1, and maintained that she was then feeling unwell and added that she made the statement because, “Etsi mou irthen”, as she said characteristically on oath. Sometime after making the above statement to the police, accused 1, affirmed once more in writing, that the price at which the land was sold was £500 and not £1,000 as declared. This declaration was made in the presence of the Turkish mukhtar of the village, her uncle, in the presence of the imam, a dignitary of the Ottoman religion, and in the presence of P.W.1. The document had been prepared by an advocate, on the instructions of P.W.l, and presented to the accused for signing. According to P.W.l and the [*234] mukhtar, P.W. 5, the contents of exhibit 3 had been read over to accused 1 and explained by the imam whereupon accused 1 signed it, her signature being attested by the mukhtar. At the trial accused 1 maintained that she was misled, mostly by the mukhtar, into signing exhibit 3 by assurances that exhibit 3 was a letter and nothing else. Asked, she was unable to say and did not apparently know to whom the letter was addressed and for what purpose it had been written, a rather strange story.

According to the evidence of P.W.1 accused 1 told him on more than one occasion before and after transfer that the land was sold for £500 and not £1000. Further he maintained that accused 2, because of a quarrel they had in the past, would not let his sister sell to him under any circumstances, an allegation that is supported by what accused 2 allegedly told P.W.5, on one occasion when he approached them to inquire on behalf of P.W.l about the possibility of purchasing the land.

Hanife Hassan, P.W.7, a co-villager of accused, living in the neighborhood of P.W.l testified that on the day preceding the transfer of the property accused 1 visited her in her house, in tears, and told her of the fact that she was due the following day to transfer the land and was ready to sell to her brother for £500. Thereafter, she had a conversation with P.W.l, who, as it is admitted, went to Famagusta the following day and had a conversation with his sister, in the course of which she admitted having sold the land for £500. Accused 1 put forward a different version concerning [*235] the circumstances of her meeting with Hanife and. the conversation they had. In the contention of accused 1, she told Hanife, in answer to a question, that P.W.l never expressed the wish to buy the subject land, a statement not altogether correct if the evidence of the mukhtar is accepted, hut that she was willing to sell to P.W.1 if he wanted the land, a somehow surprising allegation in the light of the evidence before the Court. She denied telling Hanife that the land was being sold for £500. Moreover, accused 1 denied telling her brother, after transfer, that the sale price was £500.

P.W. 5, the Turkish Mukhtar of Ayios Andronicos, an uncle of accused 1 and P.W.l, testified that on one occasion before either of the two plots was sold to accused 3 he visited accused 1 and accused 2 and enquired first whether they were contemplating to sell the land to accused 3 and secondly whether they were willing to sell the same to P.W.l Mr. Ramzi told them that it came to his knowledge that they had agreed to sell the two plots for £1200 to accused 3, a fact confirmed by accused 2. He then asked if they were willing to sell the land in question to P.W.l for a price of £1300 to which accused 2 retorted that he was unwilling to sell to P.W.l even at the price of £2,000 because of a quarrel they had regarding the sinking of a borehole in the subject property.

Accused 2 at the trial put a different gloss on the conversation he had with Mr. Ramzi and suggested that his reference to the sum of £ 2,000 was an indication of the price he wanted to sell the land. He did agree, however, that his relations with P.W.l had not been altogether happy. [*236] If the evidence of the mulch tar is accepted, it does show a strong disinclination on the part of accused 2 to sell under any circumstances the subject property to P.W.l. F.W.5. was present when accused 1 made her statement to the police and was present when she did sign exhibit 3.

In his contention 3 accused was thoroughly acquainted with the contents of exhibit 3, before she signed it. He did agree, however, that subsequently when accused 1 became apprehensive less she might go to prison, he expressed the opinion that she would not go to prison. The mulch tar as well as P.W.4, a clerk at the Lands Office, Famagusta, attached to the valuations Section, maintained that the price of £1,000 v/as above the market value of the land considering that its extent did not exceed 2 1/2 evleks and 1/4 share in a well. The only recent sale of a plot of land in the area traced by P.W.4 was the first sale made by accused 1 to accused 3 of an adjacent plot of land of a total extent exceeding one donum which was sold for £1000.

Both accused 2 and accused 3 maintained that the price at which the land was sold was not excessive as it was irrigated land. In accordance with the declaration, exhibit 2(1) the share of accused 1 in the well was sold for £100 and his share in the land for £900. A comparison between the sale at which the two plots of land ware sold v/ill reveal that the second plot was, sold for a higher price compared to the first plot and whereas more than one donum was sold for more than £1000 2 1/2 evleks of adjacent land v/as sold for £900.

P.W.1 maintained that after the transfer of the subject property accused 3 told him that he purchased both [*237] plots for £1500 and expressed a grudge against him because in consequence of his intermeddling to buy the land he was compelled to pay £1500 for the purchase of the two plots compared to £1200, the price originally agreed upon. If the evidence of P.W.1 and P.W.5 is accepted it tends to prove that the original agreement for the sale of the two plots was for £1200 and that eventually a sum of £1500 was paid for the purchase of both plots. Moreover, one other inference from their testimony is that the sale of both plots was agreed upon, on the same occasion, to be transferred subsequently on two different dates within the same year.

I have examined the evidence before the Court with extreme care and had the opportunity to see all witnesses testify before me. P.W.l and P.W.5, whose evidence was hotly contested by the defence, impressed me extremely well and have no hesitation, in accepting their evidence and acting upon it. It has been argued by the defence that P.W.5 exploited his position as a mukhtar in order to lead his niece into a trap. I reject this suggestion altogether. P.W.5 acted scrupulously and at no stage did he instigate accused 1 to incriminate herself. Moreover, he told the Court the truth as to the conversation he had with accused 2 and the admission he made as to the sale price of the land. I accept the evidence of P.W.6 that it was accused 1, who asked that P.W.5 be present when she made her statement, something that indicates the trust she placed in her uncle. Hanife Hussein also impressed me extremely well and find her to be a witness of truth. I was poorly impressed with the evidence of accused 1. [*238] She tried to explain, in whatever manner she could, every piece of evidence tending to implicate her in an effort to exculpate herself from guilt. I reject her evidence. I find as a fact that at the time of making the declaration before the L.R.O. accused 1, though she did not herself receive the money, believed that the land had been sold for £500. Instead, she declared falsely that it had been sold for £1,000. It is evident from the testimony of P.W. 7 that accused 1 found herself before a serious predicament, wishing to be loyal to her husband, who was unwilling to allow her to sell the property to her brother, feeling at the same time that it was unjust to deprive her brother of a reasonable opportunity to buy the land.

I reject the evidence of accused 3. I find as a fact that he made an admission shortly after transfer that the purchase price for both plots of land was £1500, the safe inference being that the subject plot had been purchased for £500. I further find as a fact that originally the two plots had been agreed upon for £1200, but accused 3 eventually paid £1500 because of the offer of P.W.l. Therefore, I find as a fact that accused 3 purchased the property for £1500, a fact well within his knowledge, when he falsely declared to the L.R.O. that he purchased the land for £1000, whereas in fact, it was sold for £500.

Accused 2 was directly instrumental to the commission of the offence. He evinced a persistent and stubborn unwillingness to let the land go under any circumstances to [*239] the brother of his wife. Moreover, he accompanied his wife to Famagusta on the day of transfer and was present and did himself falsely affirm to the appropriate official of the L.R.O. that the land had been sold for £1000 and not £500, the actual sum of money that he had himself received. It is evident from the totality of the evidence, and I so find as a fact, that he pressed hard on the divided loyalty of his wife and directly encouraged, aided and abetted, the commission of the offence under consideration. I find that accused 2 has been a party to the commission of the offence in the sense of Section 20 of the Criminal Code, Cap. 154. In accordance with section 42 of the Criminal Procedure Law, Cap. 155, it is permissible to charge parties to a crime either as principals, or accessories or for having incited the commission of the offence. In the instant case all three accused have been charged as principals.

All accused are found guilty as charged.