Commissioner Of Police V. Fifiawodze Ayie (1941)
LawGlobal Hub Judgment Report – West African Court of Appeal
Conviction in Magistrate’s Court subsequently upheld as to conviction but varied as to sentence in Divisional Court for profiteering in Kerosene under sections 3 and 5 of Order in Council made under Regulation 4.1 (1) (a) of the Defence Regulations 1939—Maximum selling price for two tins totalling ten gallons fixed by Regulation—No provision that ‘maximum price for smaller quantity shall be pro-rata—Sale was of small quantity of kerosene in bottles.
Held: No offence disclosed and in any event ” a tin ” of kerosene was not sold. Appeal allowed, conviction quashed.
The facts are sufficiently set out in the judgment. W . B. Van Lore for Appellant.
A. Ridehalgh, Crown Counsel, for Respondent. The following joint judgment was delivered :—
KINGDON, C.S., NIGERIA, PETRIDES,GOLD COAST
AND GRAHAM PAUL,SIERRA LEONE.
The following charge was made against the appellant in the District Court at Keta
For that you on the 18th day of January, 1941, at Keta within ” the jurisdiction of the Magistrate’s Court, constituted by the Commis” sioner of Keta District, with intent to profiteer, did fail to comply ” with the control of Oil Supplies (Maximum Prices) Order made under ” the Defence Regulations, 1939, by selling one tin kerosene (5 gal.) for ” 168 instead of 12s eid„ as prescribed by the Competent Authority.
” Contrary to sections 3 and 5 of Order in Council made under ” Regulation 41 (1) (a) of the Defence Regulations, 1939.”
She pleaded ” Not guilty ” but was found Guilty ” and sentenced to ” fine of £25 or prison five months.” On her appealing to the Divisional Court, that COurt upheld the conviction but varied the Order as follows :—” Sentenced to £15 or two months’ imprisonment!’ She now appeals to this Court against the conviction and we are of opinion that her appeal must succeed for two reasons. The first is that the charge brought against her .liscloses no offence.
The Order with which the appellant is alleged to have failed
of Policeto comply is dated the 23rd September, 1939, and the Schedule to
v.it has been replaced by another Order dated the 3rd August, 1940.
Fifiawodize The combined effect of the two Orders, so far as it is relevant to Ayie.
the present case, is to fix for Keta the maximum selling price for Kingdon,a case of kerosene containing two five American gallon tins at
Petrides25s ld and to make it an offence to sell such a case at Keta at
Graham paul a higher price. Nowhere is it laid down that the maximum
C.n. selling price for smaller quantities than a case shall be pro rata, nor does this penal legislation anywhere create it an offence to sell a smaller quantity at less than the equivalent pro rata price. The legislature has not made it an offence to sell a tin of kerosene at Keta for more than 12s 61d: Therefore one simple and complete answer which the appellant has to the charge is—” Even if I did what is alleged, it is no offence.” She has another equally complete answer. It is ” I did not sell a tin of keresone.” And this answer is supported by the facts proved in evidence and accepted by the Judge in the Divisiorial Court and by counsel for the respondent in this Court. It is true that the first witness for the prosecution Ameyiku Agbeke, said : ” I bought kerosene ” from her—a full tin. I bought one tin full from her for ” 16s When I went to buy from accused I ” asked for a tin of kerosene.” But she was not cross-examined and it is quite clear, if her evidence and that of the appellant are looked at as a whole, that the real transaction between the parties was as follows :—Agbeke asked for a tin of kerosene and the appellant, who was a petty trader, supplied her, not _with a tin, but with twenty-four bottles which were exactly the contents of a tin. By supplying these twenty-four bottles the appellant in effect said ” I am not prepared to supply you with a tin but will ” supply you with twenty-four bottles:’ As Agbeke accepted the twenty-four bottles the contract in law was one for the sale of these twenty-four bottles and not for the sale of a tin of kerosene. The facts that Agbeke produced the tin and herself filled it from the twenty-four bottles and then had the tin sealed by a tinsmith make it quite clear what the transaction really was. From the evidence it appears that appellant was carrying on a bona fide business as= a petty trader selling kerosene at 8d per bottle which was the maximum price fixed for the Colony by an Order dated 26th November, 1940, for the sale of kerosene in quantities of less than one American gallon. There does not appear to have been a maximum price fixed for sale of an amount of more than an American gallon and less than a case of two five American gallon tins. This is not a case of an unscrupulous trader trying to get round the law by an ingenious manoeuvre, but of a petty trader making a legitimate profit in the ordinary course of business, without contravening the provisions of any enactment.
The appeal is allowed, the conviction and sentence are quashed and it is ordered that the fine, if paid, shall be refunded to the appellant.