Rex v Nurmohamed Jessa and Others (Criminal Appeals Nos. 261, 262 and 263 of 1945) [1945] EACA 38 (1 January 1945)

## COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and SIR NORMAN WHITLEY, C. J. (Uganda)

#### **REX, Appellant (Original Respondent/Prosecutor)**

#### (1) NURMOHAMED JESSA, (2) PANJU JESSA, Respondents (Original Appellants / Accused Nos. 1 and 3)

## REX, Respondent (Original Respondent/Prosecutor)

#### (1) RAWJI JESSA, (2) GULAMALI JESSA, Appellants (Original Appellants/Accused Nos. 2 and 4)

#### Criminal Appeals Nos. 261, 262 and 263 of 1945

#### $\cdot$ (Appeals from decision of H . M. High Court of Tanganyika)

Criminal law—Possession of soap not conforming to Defence (Manufacture and Sale of Soap (No. 2) Order Tanganyika)--Defence (Control of Prices) Regulations, 1943, Regulations 4 (1) (2) and 25 (1)—Construction of Regulation 4 $(1)$ $(2)$ .

The appellants are two of four partners in a firm which manufactures and sells soap. A certain quantity of soap which did not conform to the standard required by the Defence (Manufacture and Sale of Soap) (No. 2) Order, having been found on their trade premises shortly after it had been manufactured the four partners were charged with "being in possession of soap which contained 6.6 per cent and 7.5 per cent of matter insoluble in rectified spirit thereby exceeding the 1 per cent of such matter permitted under the Defence (Manufacture and Sale of Soap) (No. 2) Order *contra* Regulation 4 (1) (g) Defence (Control of Prices) Regulations, 1943", and convicted.

They appealed to the High Court which dismissed the appeals in the case of the two appellants but allowed those of the other partners.

The two appellants appealed a second time.

Regulation 4 (1) (g) reads as follows: $-$

""The Price Controller may from time to time by order published in the Gazette, or in such other manner as the Price Controller may consider necessary to bring the matter to the notice of the public-

- $(g)$ prescribe the type of packing, weight, size, quality and the processing and ingredients of any goods manufactured in the Territory; and any trader who sells, or purchases, or is in possession of any such goods which do not conform to the types prescribed in the order shall be guilty of an offence;" - Held $(15-11-45)$ .—(1) That Regulation 4 (1) (g) must be read and construed as if after the words "any trader who" there occurred such words as "in the course of his trading" or "as such" because a purely literal construction of the regulation would make it quite impossible for any one to carry on the business of manufacturer of soap for sale without committing an offence.

(2) That the question whether the soap found had passed from the *manufacturer as* such to the trader as such was never considered by the lower Courts and had not been proved.

Appeals allowed,

# Carnegie, Ag. Solicitor General (Tanganyika), for the Crown.

## Vellani for the Respondents.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—These appeals relate to a charge brought in the District Court of Uzaramo at Dar es Salaam against four $accused:$

- (1) Nurmohamed Jessa, - (2) Rawji Jessa, - (3) Panju Jessa, and - (4) Gulamali Jessa, trading as Nurmohamed Jessa.

The charge was brought under Regulation 4 (1) $(g)$ of the Defence (Control of Prices) Regulations, 1943, Government Notice No. 336 of 1943 as amended by Government Notice No. 104 of 1944, and Regulation 25 of the aforesaid Regulations. The four accused persons are admittedly partners of a firm which manufactures and sells soap, and it is clear enough that they were charged as the firm. They were charged with being in possession of two varieties of yellow or laundry soap which contained 6.6 per cent and 7.5 per cent of matter insoluble in rectified spirit, thereby exceeding the 1 per cent of such matter permitted under the Defence (Manufacture and Sale of Soap) (No. 2) Order, 1943 (Government Notice No. 337 of 1943). They were convicted by the magistrate of the offence charged and sentenced as a firm to pay a fine of Sh. 500 with distress in default.

From that conviction and sentence they appealed to the High Court. In giving judgment on the appeal the High Court decided as follows:

- (1) That the magistrate had no authority to impose a fine on the firm as a firm of partners is not a body corporate within the meaning of Regulation 25 (2) of the principal Regulations. $25$ - (2) That as regards the first and third accused as they were excused at their own request from attendance and therefore were not present at the close of the prosecution to be addressed formally in terms of section $197(1)$ of the Criminal Procedure Code, 1930, their convictions could not stand and must be set aside. - (3) That the appeals of the second and fourth accused must be dismissed subject to an alteration of the finding against them to one of guilty of failing to comply with the requirements of clause 3 $(2)$ $(c)$ of the Defence (Manufacture and Sale of Soap) (No. 2) Order, contrary to Regulations 4 (1) (g) and 25 (1) of the Defence (Control of Prices) Regulations, 1943. - (4) That the fine of Sh. 500 imposed on the firm and paid was to be refunded as to Sh. 250 to first and third accused and the balance of Sh. 250 retained as representing the share of the second and fourth accused of the original fine.

From the decision of the High Court the second and fourth accused have appealed to this Court, and the Crown has appealed against the decision regarding the first and third accused.

Both appeals have been heard together in this Court and the view we have taken on the merits of the case makes it unnecessary for us to deal with the two appeals separately. We have come to the conclusion that the appeals of the second and fourth accused must succeed and their convictions be quashed and that the whole fines paid must be returned.

It is clear to us that the Regulation 4 (1) $(g)$ under which the charge is brought must be read and construed as if after the words "any trader who" there occurred such words as "in the course of his trading" or "as such". If this construction be not adopted the regulation in question is quite absurd when it is applied to a person who is both a "manufacturer" and a "trader". The legislature must be taken to have recognized that a "manufacturer" of soap would sell his soap and so become a "trader". It is obvious that until the process of manufacture is complete and the manufactured article is put in the position of being ready for sale to the public the possession of that article is in the manufacturer as such and not in the manufacturer as a "trader". In other words putting upon this section in a "Control of Prices" Regulation the absolutely literal construction put upon it by the Magistrate and the High Court would make it quite impossible for anyone to carry on the business of manufacture of soap for sale without contravening the section.

Obviously, until the process of manufacture is completed and the goods passed as fit for sale the manufacturer may well be in possession of goods which are not up to the legal standard. It is inevitable that sometimes at the close of a manufacturing process the finished goods may prove to be unfit for sale and have to be rejected but *ex hypothesi* they would still be in the possession of the manufacturer and according to the construction put upon the material section by the magistrate and the High Court an offence would have been committed. That in our view involves a construction of the section which means that the legislature has enacted something perfectly absurd. It is not too much to say that the Courts must be astute to avoid such a result and it seems to us that the alternative construction which we have suggested is entirely in consonance with the whole purpose and intention of the legislature as expressed in the section.

Accepting that which we think is the only possible commonsense interpretation of the section it is obvious that the real question to be considered on this charge was whether the goods in question had passed from the "manufacturer" as such to the "trader" as such. That question was never considered either by the magistrate or the High Court at all. On the evidence and the findings of the magistrate it is clear that the prosecution did not prove to the magistrate's satisfaction that the goods in question had passed from the "manufacturer" as such to the "trader" as such. That being so the original conviction and sentence of the magistrate were unjustified and so far as not already set aside by the High Court must be, and are hereby, set aside. Any unrefunded portion of the fine must be refunded to the firm.

We must point out that the learned Judge of the High Court in holding that the magistrate had no authority to impose a fine on the firm overlooked the effect of the definition of "person" contained in the Interpretation Ordinance (Cap. 1, section 2) as including "any body of persons, corporate or incorporate". That definition applied to Regulation 25 (1) in the present case clearly gave the magistrate authority in a proper case to convict and sentence a firm. It is for that reason that we order that the refund of the fine should be made to the firm.

In view of our decision on the merits the appeal by the Crown becomes merely of academic interest. But we should point out that the charge here being one punishable without proof of previous conviction by a fine of Sh. 10,000 or imprisonment for two years or both such fine and imprisonment is not a "felony" within the meaning of the Penal Code and therefore it was quite within the powers of the magistrate to dispense with the attendance of the first and third accused and the learned Judge of the High Court in holding otherwise had overlooked the provisions of section 97 of the Criminal Procedure Code or the fact that the accused in this case were represented by an advocate. If it had been necessary to do so we should have allowed the appeal of the Crown on this point but in view of our general finding on the merits the necessity of dealing with the Crown appeal does not arise.