Din v Rex (Criminal Appeal No. 56 of 1951) [1951] EACA 245 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH. J. of A.

## MOHAMED SHERIFF NIZAM DIN. Appellant (Original Accused)

REX, Respondent (Original Prosecutor)

## Criminal Appeal No. 56 of 1951

(Appeal from the decision of H. M. Supreme Court of Kenya-Modera, J., and Windham, J.)

Criminal law—Defence (Control of Prices) Regulations, 1945; regulations 2, 11 (1) and 22 (1)—Sale of goat's meat in excess of price permitted by regulations— Meaning of "sale".

The appellant was convicted in Court of the Resident Magistrate, Nairobi, of selling price regulated goods, to wit, $3\frac{1}{2}$ lb. of goat meat, at a price in excess of the permitted selling price of such goods, contrary to regulation 11 (1) of the Defence (Control of Prices) Regulations, 1945. He was sentenced to pay a fine of Sh. 500. He appealed to the Supreme Court of Kenya, which dismissed his appeal.

The facts were, as found by the Magistrate, and confirmed by the Supreme Court, that a customer of the appellant had sent his African boy to the appellant's place of business with a written order for three (or 3 lb.) mutton chops and 3 lb. rolled beef. Against this order the appellant supplied $3\frac{1}{2}$ lb. of goat's meat and 3 lb. of rolled beef. He handed to the African boy an invoice for "3 Beef Sh. 4.80 and $3\frac{1}{2}$ chops Sh. 5.25". The Magistrate found that the latter entry referred to mutton chops; that the sale was made with intent to deceive the boy and the customer into believing that the chops were mutton: and that the price charged was in excess of the permitted price for 3 lb. of goat's meat, which was Sh: 1.78.

On second appeal, it was contended on behalf of the appellant that, having regard to regulation 22 (1) of the Regulations, no offence had been committed against the Regulations, as mutton chops were ordered and mutton chops were, on the face of the invoice, supplied, so that the only sale was one of mutton chops and not one of goat's meat. It was contended further that there was no sale because the customer did not accept the goat's meat but rejected it, and did not affirm the contract of sale.

Held (24-8-51).—(1) That if a trader knowingly misdescribes goods as of a superior quality but in fact supplies goods of an inferior quality and charges a price which is in excess of the permitted maximum price for the latter, he has committed an offence against the regulations.

(2) That once it was held that the appellant's conduct was fraudulent, there was never any concluded contract for the sale of mutton. Instead of accepting the customer's offer to buy mutton, the appellant had offered to sell goat's meat to the customer, and that offer was a sale within the definition of "sale" in regulation 2.

Appeal dismissed.

Appeal against conviction and sentence.

Mervyn J. E. Morgan for the appellant.

## John H. S. Todd, Crown Counsel, Kenya, for the Crown.

JUDGMENT (delivered by SIR NEWNHAM WORLEY, V. P.).—The appellant was convicted on the complaint of the Price Controller, Kenya, in the Court of the Resident Magistrate, Naïrobi, of the offence of selling price regulated goods, to wit, $3\frac{1}{2}$ lb. of goat meat, at a price in excess of the permitted selling price of such goods, contrary to Regulation 11 (1) of the Defence (Control of Prices) Regulations, 1945.

His appeal to the Supreme Court of Kenya against both conviction and sentence was dismissed and he now appeals to this Court against his conviction on the grounds that the Judges of the first Appellate Court erred in law—

(a) in not concluding that there was never a sale of goat's meat at all; and

(b) in overlooking the Magistrate's finding of fact that the word "chops" on the invoice supplied with the meat in question was intended to represent "mutton chops".

The relevant facts as found by the Magistrate and confirmed by the Judges of the Supreme Court and on which no appeal lies to this Court are that a Mr. Pienaar, a regular customer of the appellant (who carries on business as a butcher in the Municipal Market, Nairobi) sent his African boy to the appellant's place of business with a written order for three (or 3 lb.) mutton chops and 3 lb. rolled beef. Against this order the appellant supplied $3\frac{1}{2}$ lb. of goat's meat and 3 lb. rolled beef. At the same time he handed to the African boy an invoice for three Beef Sh. 4.80 and $3\frac{1}{2}$ Chops Sh. 5.25. The learned Magistrate found as a fact that this second entry was meant by the appellant to represent " $3\frac{1}{2}$ lb of mutton chops at Sh. 5.25". The Magistrate further found that the appellant sold and delivered the goat's meat with the intention of deceiving the African boy and Mr. Pienaar into believing that it was mutton and that the price charged was in excess of the permitted selling price by Sh. 1.78.

With reference to the second ground of appeal we notice that in the brief judgment of the learned Judges of the Supreme Court, they observe:-

"We would add that there is indisputable evidence that goat's meat was supplied against an invoice (exhibit 1) which invoice made a bare reference to "Chops" without designating the species of beast from which those "chops had in fact been cut."

It appears to us that this passage could well be construed as implying, not that the Judges were overlooking the construction put by the Magistrate on exhibit 1, but that they preferred and were expressing their own construction of the document. This they were entitled to do for they were in as good a position as the Magistrate was for this purpose: for, although the appellant has averred in his memorandum of appeal that "chops" in ordinary English parlance means "mutton chops" there was no evidence to that effect, nor any evidence that such is its customary usage in the trade and reference to dictionaries does not support the suggestion. But, however that may be, we will assume in the appellant's favour that the learned Judges on first appeal did not intend expressly to overrule the Magistrate's finding on this point.

Mr. Morgan's contention on the first ground of appeal was that since mutton chops were ordered and mutton chops were, on the face of the invoice, supplied, the only sale in law was a sale of mutton chops and therefore no offence was committed under the Defence (Control of Prices) Regulations, though he conceded that the appellant might perhaps have been charged and convicted of obtaining money by false pretences. This point was raised at the trial and was dealt with by the learned Magistrate on the footing that the appellant as a fraudulent party was estopped from denying that there had been a sale of goat's meat which Mr. Pienaar was at liberty to affirm and did affirm. The point was also raised in the memorandum of appeal to the Supreme Court but was not dealt with by the Judges of that Court unless, indeed, they intended to do so in the passage of their judgment which reads: -

"We are satisfied that a transaction as defined in and contemplated by the Defence Regulations in question was enacted."

We can agree with Mr. Morgan that the learned Magistrate erred in importing the equitable rule of estopel into a criminal case and we could wish that ¥

the learned Judges of the Supreme Court had dealt more explicitly with this ground of appeal. Nevertheless, we are not thereby debarred from applying the law, as we conceive it, to the case. Mr. Morgan rested his argument mainly upon regulation 22 (1) of the relevant Regulations which provides, so far is material:-

"In any proceedings in any court instituted for an offence against the provisions of any of these regulations... the production by the Price Controller... of an original invoice... shall be prima facie evidence of a sale by the seller and of all the facts contained in such invoice... or where the prosecution relies upon the falsity of the contents of such invoice...shall be prima facie evidence of such falsity, and...the burden of proving that any sale did not take place or that any fact contained in the original invoice ... is not what it purports to be, or that the contents thereof are not false, shall lie upon the defendant."

The argument, if we understood it aright, was that the prosecution having produced the invoice and relied upon it as evidence of the sale it must be taken as prima facie evidence that the sale was a sale of mutton chops; and, further, that no sale of goat's meat was proved because, in fact, Mr. Pienaar did not accept the meat sent but rejected it, and did not affirm the contract of sale as the Magistrate found.

We have been at pains to understand and consider these submissions but cannot accept them. In the first place, it seems to us that a wide breach is opened in the protection afforded to the public by these regulations if it be the law, as Mr. Morgan suggested, that no offence under the regulations is committed if a trader offers for sale goods of inferior quality marked as goods of a superior quality at the price permitted for the latter, and a purchaser buys them at that price thinking that he is getting the superior goods. It may be that in civil proceedings between the parties on the contract, the maximum of *caveat emptor* and the provisions of the Sale of Goods Act relating to warranties or conditions might fall to be considered. But such considerations can have no place when the Legislature has decreed in the public interest a maximum permissible price at which the inferior goods may be sold. In such proceedings the trader cannot evade the law by a misdescription of the goods and if it be found (as it was found in the instant case) that he has knowingly given a misdescription and has, in fact, sold the inferior goods at a price exceeding the permitted maximum a conviction must follow.

As regards the prima facie meaning of the invoice, the prosecution did not rely upon the truth of the entry but upon its falsity for they were seeking to prove a sale of goat meat; the onus therefore was cast upon the appellant to show the truth of the material entry thereon. This in the circumstances, he could not $\Delta$

The other limb of Mr. Morgan's argument, namely, that no sale of goat meat was effected must fail in view of the special definition of "sale" in the relevant regulations. In regulation 2 "sell" with its grammatical variations and cognate expressions includes an agreement to sell and an offer to sell.

We agree with Crown Counsel who appeared for the respondent that the appellant is caught by the terms of this definition on the facts as found by the Magistrate. Once it was found that the appellant's conduct was fraudulent, it must follow that there was never any concluded contract for the sale of mutton. Instead of accepting Mr. Pienaar's offer to buy mutton, the appellant offered to sell him goat at the price of and described as mutton. That offer constituted a sale within the meaning of the definition and the offence was complete, regardless of whether or not Mr. Pienaar accepted the offer.

For these reasons the appeal fails on both grounds and is dismissed.