Omolo v Rex (Criminal Appeal No. 89 of 1941) [1940] EACA 60 (1 January 1940)

## APPELLATE CRIMINAL

## Before HAYDEN and BARTLEY, JJ.

### JOEL OCHOLA S/O OMOLO, Appellant

$\nu$

# REX. Respondent

# Criminal Appeal No. 89 of 1941

Criminal Law—Criminal Procedure—Interpretation of Statutes—Section 15 (1) Native Liquor Ordinance, 1930.

The appellant was charged before the Resident Magistrate's Court at Nakuru with an offence contra section 15 (1) of the Native Liquor Ordinance, 1930, in that he on the 23rd day of April, 1941, did, at the Prisons Line, in the Municipality of Nakuru, not being duly licensed on that behalf, manufacture native intoxicating liquor, to wit 30 gallons of Nubian gin.

The appellant pleaded guilty and was convicted on his own confession and was sentenced to a term of six months imprisonment with hard labour and in addition to a fine of Sh. 400 and in default of payment of the fine to a further term of three months imprisonment with hard labour.

The appellant appealed from sentence. On appeal the question was raised by the Court as to whether the charge as framed constituted an offence.

**Held** $(17-5-41)$ .—(1) The appellant was not charged with manufacturing liquor for the purpose of sale.

(2) That on a proper interpretation of section 15 (1) of the Native Liquor Ordinance, 1930, under which appellant was charged, the mere unlicensed manufacture of liquoreven in a municipality was not an offence; though the manufacture, possession or use of the materials for its manufacture would be.

(3) The charge as framed therefore constituted no offence and the conviction and sentence must be set aside.

(4) The rule of Autrefois Acquit could not apply in view of the fact that the accused was not in peril, and the Crown were free to take any further action considered advisable. Lord Coleridge's dictum in *Pocock v. Pickering* (1852), 18 Q. B. 789, referred to.

#### Appellant in person.

### Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The accused was charged in these words:—

"Joel Ochola s/o Omolo on the 23rd day of April, 1941, at Prisons Line, in the Municipality of Nakuru, not being duly licensed in that behalf, did manufacture native intoxicating liqour, to wit 30 gallons of Nubian gin, thereby committing an offence contrary to section 15 (1) of the Native Liquor Ordinance, 1930."

The accused pleaded guilty and was duly convicted and sentenced. He appealed against the sentence imposed.

On hearing the appeal the question was raised by the Court as to whether the charge as framed constituted an offence. Section 15 (1) of the Native Liquor Ordinance, 1930, reads: -

"Any person not duly licensed in that behalf who shall manufacture for the purpose of sale or shall sell native intoxicating liquor, or who in a municipality, township or trading centre shall manufacture, possess or use sprouted grain, liquid yeast or any other materials or apparatus for the manufacture of native intoxicating liquor, whether such liquor is for his own use

Editorial Note.—Since 28th April, 1941, section 4 (1) of the Native Liquor (Amendment) Ordinance, 1941, prohibits inter alia the manufacture of any native spirituous liquor, e.g. Nubian gin, in any area in the Colony.

or otherwise, and any licensed person who shall manufacture for the purpose of sale and shall sell native intoxicating liquor on premises other than those authorized by his licence or shall commit any other breach of the terms and conditions of his licence, shall be guilty of an offence and shall be liable on conviction before a magistrate to a fine not exceeding fifty pounds or to imprisonment of either description for a period not exceeding six months or to both such fine and imprisonment.

In our view the first sentence of this section makes it an offence for any person to manufacture native intoxicating liquor for the purpose of sale. We are not concerned with that sentence, which only deals with manufacture for sale. Our concern is with that portion of the section which commences with the words "who in a municipality" and ends with the words "for his own use or otherwise" read of course with the words "Any person not duly licensed in that behalf".

The portion of the section which concerns us makes it an offence to "manufacture, possess or use sprouted grain, liquid yeast or any other materials or apparatus for the manufacture of native intoxicating liquor" in a municipality. The accused was not charged with any of these acts. He was charged with manufacturing native intoxicating liquor in a municipality. Mr. Spurling, for the Crown, submitted that a person could not manufacture native intoxicating liquid without using materials for its manufacture. We agree that this is so, but we are of the opinion that what this penal section has constituted an offence is not the manufacture of liquor in a municipality but the manufacture or use of materials for the manufacture of native intoxicating liquor.

We have considered the possibility of reading the word "manufacture" as though it were divorced from the words "possess or use" and as though it should be interpreted as meaning "manufacture native intoxicating liquor". We can, however, see no ambiguity in the wording of the section. The words as used, although unhappy, still make grammatical sense and the golden rule of construction is of course that the grammatical and ordinary sense of the words is to be adhered to, unless that would dead to some absurdity or some repugnance or inconsistency with the rest of the statute. We find no absurdity, inconsistency or repugnance. Support for this view is to be found in the wording of section $6(1)$ of the Ordinance, which reads: --.

"No person, unless he holds a licence issued to him under this Ordinance, shall manufacture for the purpose of sale or shall sell native intoxicating liquor, or shall, in a municipality, township or trading centre, possess or use sprouted grain, liquid yeast or any other process for the manufacture of native intoxicating liquor, whether such liquor is for his own use or otherwise."

This sub-section prohibits the doing of that with respect to which section 15 (1) creates an offence and prescribes a penalty. It will be observed that the relevant portion of section 6 (1) prohibits the possession or use in a municipality of sprouted grain, liquid yeast, or any other process for the manufacture of native intoxicating liquor and does not refer to the manufacture of native intoxicating liquor in such place.

We respectfully agree with the remarks of Lord Coleridge in his judgment in Pocock v. Pickering (1852), 18 Q. B. 789, "Perhaps the most efficacious mode of procuring good laws, certainly the only one allowable to a Court of justice, is to act fully up to the spirit and language of bad ones, and to let their inconvenience be fully felt by giving them their full effect".

We have for the reasons given come to the conclusion that the charge did not disclose an offence and that we must set aside the conviction and sentence. As the accused was not in peril it is open to the Crown to take any action considered desirable.