Rex v Popat Kassam and Sons, Limited (Criminal Appeal No. 61 of 1043) [1943] EACA 30 (1 January 1943)

## COURT OF APPEAL FOR EASTERN AFRICA

$\tau_{\rm{eff}}$

$\hat{\gamma}_{\mu\nu}$

$\mathcal{A}^{\dagger}$

Before Sir JOSEPH SHERIDAN, C. J. (Kenya), Sir NORMAN WHITLEY, C. J. (Uganda) and GRAY, C. J. (Zanzibar) $\{f_1\} \in \mathbb{R}$

# REX, Respondent (Original Prosecutor)

### POPAT KASSAM & SONS, LIMITED, Appellants (Original Accused) 2003

#### Criminal Appeal No. 61 of 1043

Appeal from decision of H. M. High Court of Tanganyika

Criminal Law-Tanganyika Price of Goods Ordinance (No. 4 of 1940), Sections 2 and 3—Basic Price—Evidence of Basic Price.

The Appellant Company had been convicted by the trial Magistrate under section 3 (1) of the Price of Goods Ordinance No. 4 of 1940 of selling goods, namely a 6-pint kettle, at a price which exceeded the basic price, words which are defined in section 2 of the same as follows: -

"The price at which price regulated goods of a description and quality similar thereto were sold under similar conditions on or immediately before the 1st August, 1939."

The Appellant Company was fined Sh. 600.

$\mathcal{O}(1/\sqrt{2})\geq \mathcal{O}(1/\sqrt{2})$

$\ldots \ldots$ $\mathcal{L}^{\mathcal{A}}$

$\mathcal{L} \in \mathcal{L}_{\mathcal{L}}$

$\mathcal{L}_{\text{max}}(x)$

$\mathcal{L}(\mathcal{M})=1$

$\mathcal{M}^{\mathcal{A}}$

The Appellant Company thereupon appealed to the High Court of Tanganyika, but the appeal was dismissed. $\mathcal{L} = \mathcal{L} \times \mathcal{L} \times \mathcal{L}$ $\mathcal{L} \subset \mathcal{L}$

The Appellant Company thereupon appealed to the Court of Appeal for Eastern Africa on the point of law that the prosecution at the trial had not established what was the basic price of goods of a similar description and quality sold on or immediately before 1st August, 1939.

Held (17-5-43).—The Price of Goods Ordinance, No. 4 of 1940, being penal requires to be<br>construed strictly and from the wording of Sections 2 and 3, before a conviction can be had the prosecution must establish affirmatively-

(1) That articles of a similar description and quality as the articles alleged to have been sold at an excessive price were sold in Tanganyika on or immediately before 1st August, 1939.

(2) The price at which such articles were sold.

(3) That such article has now been sold at a price in excess of that price.

The prosecution had failed to prove in evidence what was required by the Ordinance in order to establish the offence charged.

Appeal allowed, conviction quashed and sentence set aside.

Appellant absent, unrepresented.

#### Windsor-Aubrey, Acting Solicitor-General (Uganda), for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).-This second appeal raises a point of law under sections 2 and 3 of the Tanganyika Price of Goods Ordinance (No. 4 of 1940). The charge was that the appellants sold goods, namely a 6-pint kettle, at a price which exceeded the basic price. The substantial ground of appeal is that no basic price was proved. "Basic Price" is defined in section 2 as meaning-

"the price at which price regulated goods of a description and quality similar thereto were sold under similar conditions on or immediately before the 1st August, 1939".

The Magistrate does not appear to have made any finding as to what the basic price of these particular kettles was in 1939, and on the evidence adduced we cannot see how he possibly could have done for there is nothing to show that such kettles were imported and sold or even manufactured in 1939. The only evidence before the Court dealt with kettles of the same capacity and manufacture but of a cheaper and inferior quality. The kettle the subject of the charge was a "Judgeware" article. Mr. Jones, Manager of J. S. Davis & Co., stated that his firm imported "Judgeware" in 1939 and gave the basic price in 1939 of a 6-pint kettle as Sh. $10/50$ , but he admitted that that was of a different quality and cheaper in type than the one sold by the appellants.

The enactment being penal has to be construed strictly and from the wording of the sections already referred to it seems to us clear that before a conviction can be had the prosecution must establish affirmatively: —

- (1) That articles of a similar description and quality as the article alleged to have been sold at an excessive price were sold in Tanganyika on or immediately before 1st Auugst, 1939. - (2) The price at which such articles were then sold. - (3) That such article has now been sold at a price in excess of that price.

As we have already indicated, there is nothing in the evidence to show that kettles of this particular quality were sold at all in Tanganyika in 1939. All that is proved is that the appellants are selling them now and that J. S. Davis & Co. sold kettles of an inferior quality in 1939. We cannot agree that goods of an inferior quality can be regarded as goods of a similar quality so as to fall within the wording of section 2. It may well be that if further questions bearing on this point had been put to the witnesses or further investigations made the prosecution might have been able to make out their case, but we have to take the record as it stands. Our attention has been drawn to the appellants' admission in evidence that the selling price of the kettle in question is Sh. 12, but that must mean the present selling price and whilst we agree that it is most improbable that kettles of the same quality would have been sold in 1939 at a higher price that does not get over the difficulty that we are still left in the dark as to whether such kettles were sold at all in Tanganyika in 1939 and if they were not there can be no basic price within the definition in section 2.

It is clear that the kettle in question was sold at a grossly excessive price and that morally the appellant deserves all the severe strictures passed upon him by the Magistrate, but unfortunately for the prosecution they have failed to prove in evidence what is required by the Ordinance in order to establish the offence charged. $\mathcal{L} = \mathcal{L} \times \mathcal{L}$

$\tau_{\rm{max}}$

convis $\mathcal{L}_{\mathcal{F}}(\mathcal{F}) = \mathcal{L}_{\mathcal{F}}(\mathcal{F})$

医肾小脑 医肝压力

and write unique aview official to a

$\mathbb{C}^{\mathbb{Z}}\left(\mathcal{M}^{(1)}\right)\cong\mathbb{C}^{\mathbb{Z}}\left(\mathcal{M}^{(1)}\right)\cong\mathbb{C}^{\mathbb{Z}}\left(\mathcal{M}^{(1)}\right)\cong\mathbb{C}^{\mathbb{Z}}\left(\mathcal{M}^{(1)}\right)\cong\mathbb{C}^{\mathbb{Z}}\left(\mathcal{M}^{(1)}\right)\cong\mathbb{C}^{\mathbb{Z}}\left(\mathcal{M}^{(1)}\right)\cong\mathbb{C}^{\mathbb{Z}}\left(\mathcal{M}^{(1)}\right)\cong\mathbb{C}^{\mathbb$

$\sim \mathcal{O}^{-\infty} \ ,$

$\mathbb{C}^{\mathbb{C}}\cap P^{n-1}\cap S$

The appeal is allowed and the conviction and sentence set aside.

$7.7\pm0.2$

$\gamma = \epsilon \gamma$

$\mathfrak{S}^{(1,2)}_{\mathcal{F}^{\prime},\mathcal{F}^{\prime}}$