Jiwa v Rex (Criminal Appeal No. 263 of 1950) [1951] EACA 155 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, President, SIR DAVID EDWARDS, C. J. (Uganda), and LOCKHART-SMITH, Ag. Vice-President

NOOR MOHAMED JIWA, Appellant (Original Accused)

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## REX, Respondent

## Criminal Appeal No. 263 of 1950

(Appeal from decision of H. M. High Court of Uganda-Ainley, J.)

Uganda Cotton Ordinance—Section 45—Offence—Closing store.

The appellant was convicted by the Masaka Magistrate of an offence *contra* section 45 of the Cotton Ordinance. It was admitted that the appellant's store was closed between certain dates but when the prosecutor offered to call the evidence of witnesses who could prove they brought cotton to the store to be sold, but were unable to sell it because the store was closed, the Magistrate told the prosecutor that such evidence could be dispensed with and directed the prosecutor to close his case.

On appeal to the High Court it was held that if a' man leaves his store locked and deserted he has put it out of his power to purchase cotton when brought for sale and equally he has put it out of his power to refuse to purchase cotton when brought for sale.

Held (13-4-51).—A person commits a complete offence if he fails to keep the premises, in respect of which the licence has been granted, open.

Appeal dismissed.

A. G. Mehta for appellant.

Sheridan, Crown Counsel (Uganda), for respondent.

JUDGMENT.—This is an appeal from a judgment of the High Court of Uganda in its appellate jurisdiction dismissing an appeal from a judgment of the Magistrate at Masaka, who had convicted the appellant of an offence contrary to section 45 of the Cotton Ordinance (Cap. 36, as amended by section 17 of the Cotton (Amendment) Ordinance, 1949). Section 45, sub-section (2) is in the following terms: –

"(2) On the day or days notified by the Director of Agriculture for the buying of raw cotton at every building licensed for the purchase of raw<br>cotton, any holder of a cotton buying licence who, between the hours of sunrise and sunset fails without reasonable cause-

- (a) to keep the premises in respect of which the licence is granted open; and - (b) to purchase any raw cotton of a grade specified in any order made $(b)$ under section 43 of this Ordinance when brought for sale,

shall be guilty of an offence."

At the trial before the Magistrate the prosecutor intimated that he had other witnesses to call who would prove that they had brought their cotton to be sold at Semabule Store between 23rd June, 1949, and 6th February, 1950; but were unable to do so as the premises were closed. The Magistrate, however, told the prosecutor that, since the fact that the store was closed between these dates was

not in dispute, their evidence might be dispensed with. The Magistrate thereupon told the prosecutor to close his case and the accused was at once called upon to enter upon his defence. He, in fact, gave evidence on oath, but called no witnesses.

The main ground of appeal is that the learned Judge of the High Court of Uganda erred in law in holding that section 45 (2) (a) and (b) form two different offences and that he also erred in law in interpreting the word "and" as "or".

We quote from the judgment of the High Court:

"It was not proved, though it appears that it might have been proved, that persons brought raw cotton to the store, shut as it was, for sale. That, it is said, is fatal to the conviction, for it is argued that one offence only is created by section $(2)$ of section 45, and that offence is a failure to keep licensed premises open and to purchase raw cotton when brought to the closed premises. Now, 1 very, readily, admit that it is perfectly possible to gather from the sub-section that one peculiar composite offence has been created. In spite of the semi-colon after the word "open" and in spite of the subdivision into, paragraphs (a) and (b) there is an obstinate "and" between the requirement to keep the premises open and the requirement to purchase cotton brought for sale. But to hold that this "and" does indeed constitute the contents of paragraphs (a) and (b) as two elements of one offence results in an absurdity. The contents of these paragraphs will not combine to form a comprehensible act of wrong doing. Plainly in this context a man keeps his premises "open" if, and only if, he keeps his premises ready and prepared to purchase raw cotton when brought for sale. If he leaves his store locked and deserted he has put it out of his power to purchase cotton when brought for sale. He has equally put it out of his power to refuse to purchase cotton when brought for sale.'

The question for this Court to decide is whether the learned Judge came to a correct conclusion in law. In the case of *Chesterton Rural District Council v*. *Thompson* (1947), 1 All England Reports 274, the Court of Appeal in England held that an Appellate Court should not interfere unless convinced that a Court of first instance is wrong. Approaching the matter in this way, we are not convinced that either of the Courts below was wrong. At page 212 of Maxwell on Interpretation of Statutes, 9th (1946) edition, one finds authority for avoiding the consequences of adopting one of two interpretations, which would be to lead to an absurdity. Then, again, at page 236, the following appears: -

"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship, or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the Legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. The rules of grammar yield readily in such cases to those of commonsense."

Let us take a simple case: supposing a seller of raw cotton, living a few miles from the premises visualized in section 45 (2) (a), visited them on foot or on his bicycle in the morning and found them closed. He might well say to himself:

"It is useless my now going to the expense of approaching a transport contractor with a view to his hiring a lorry later this morning so that he can transport my cotton from my farm to these premises because they are closed. I would be losing the money spent on the cost of transport". We think, therefore. That a person commits a complete offence if he fails to keep the premises, in respect of which the licence has been granted, open. We do not think that we are doing violence to the language of sub-section (2) of section 45 if we say that what the Legislature intended is this: "You commit an offence if you fail to keep the premises open; but, even although your premises are open, you likewise commit an offence if you fail to purchase any raw cotton of the grade specified in any order made under section 43 of this Ordinance when brought for sale". To read sub-section (2) in any other 'way would frie an that any holder of a Cotton Buying Licence could entirely defeat the law by keeping his premises closed because he would thereby put it out the bower of a likely seller to offer his cotton for sale.

The Ordinance must be read as a whole and section 33 makes it an offence for a licence holder to purchase or agree to purchase raw cotton at any place other than a building in respect of which a licence has been granted under section 19 of the Ordinance. While we must not be regarded as agreeing with everything that fell from the lips of the learned Judge, and while we disagree with the trial Magistrate in his action in preventing the prosecutor from leading evidence as to the readiness of people to sell, we do not think that the conviction was wrong.

For these reasons we dismiss this appeal.