The Queen V. Alexander A. Ohaka (1962)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC

This appeal is from the decision of the High Court at Aba (Kaine, J. on 3rd October, 1961) whereby the conviction passed by the Magistrate (O. Inko-Tariah, Esq., on 27th September, 1960) was upheld. Shortly put, the evidence at the trial was to this effect:

The appellant was the owner of a chemist’s shop at 83 Azikiwe Road, Aba, where he, not being a licensed chemist himself, employed one Mr. Gooding, who was a licensed chemist. A Police officer in company of the Senior Medical officer, visited the shop on 22nd June, 1960, and asked to be shown all the poisonous drugs in the premises; Mr. Gooding, in the presence of the appellant, showed them his poisons list and cupboard; the appellant did not say he had any more in his possession. On the 23rd June, the Police made a search in other parts of the premises at 83 Azikiwe Road, and found in a back store a number of cases of poisonous drugs which had not been shown on the previous day.

The appellant was asked how those drugs came to be there, but gave no answer. Mr. Gooding was fetched; he denied all knowledge of those drugs, and suggested that they must have been placed there by unscrupulous traders; the appellant made no comment. He admitted to the Police that he was not a registered chemist and druggist; his name did not appear in the Federal Gazette list of registered chemists and druggists. Mr. Gooding’s name did appear in that list; and 83 Azikiwe Road was registered as premises under the Pharmacy Act. The entire premises at 83 Azikiwe Road were in the occupation of the appellant. The Police also produced evidence that the goods found on the 23rd June were poisons.

In his first statement to the police the appellant said that Mr Gooding might not know about the drugs found on the 23rd June; in his second statement he did not say that they had been ordered and received by Mr. Gooding and were in his possession; it was in his third statement that he mentioned Mr. Gooding as being connected with other drugs besides those in the dispensary. It remains to add that the signboard outside the dispensary had the name UNITED CHEMISTS on it; it was a business name used by the appellant under the Registration of Business Names Act; it was a one-man business, and the business was his alone. These facts were the ground of a count in the charge laid under Section 21 of the Pharmacy Act, that he, although not a dispenser or chemist and druggist, used the name UNITED CHEMISTS to describe his business premises at 83 Azikiwe Road, Aba. Admittedly the pharmacy was his, and the business name his alone, consequently there was contravention of Section 21(1)(b) of the Act, which enacts that-

No person other than a dispenser or a chemist and druggist, as the case may be, shall

(b) use the term “pharmacy” or “chemist shop” or “drugstore” or any other term of like meaning to describe his business premises.

It is made an offence under Section 21(2). An attempt was made to escape through Section 37; but that speaks of a “body corporate, a company as defined in the Companies Act or a firm as defined in the Registration of Business  Names Act”, in which a firm is defined to mean-

an unincorporate body of two or more individuals who have entered into partnership with one another with a view to carrying on business for profit.

The conviction under Section 21 was sound, and has not been questioned before us with any show of warmth. No more need be said on that count.It was the conviction of the other count which was mainly complained of. The other count was laid under Section 59 of the Pharmacy Act, which provides that-

Any person who shall sell or transfer, make or possess any poison or poisonous matter, with the intent that it shall be used for an illegal purpose shall be liable to a fine of one hundred pounds, or imprisonment for a term of two years, or to both such fine and such imprisonment.

The charge was that on the 23rd June, 1960, the appellant had in his possession the poisonous drugs specified in the charge with intent that they should be used for an illegal purpose. After the prosecution closed its case, learned Counsel for the appellant submitted that there was no case to answer, but that was overruled, and the appellant gave evidence. He admitted that he owned the business named the UNITED CHEMISTS and had the premises registered on his behalf in that name; he said that Mr. Gooding was his employee, and that he himself did not sell, dispense or compound drugs. He spoke of the visit of the Senior Medical Officer and the Police Officer on the 22nd June, and said that Mr. Gooding signed for the orders of supplies, and produced invoices as covering all the drugs in his store; that all the poisonous drugs in his business were entered in the Poisons Register; that he made wholesale supplies to County and District Councils and medical practitioners; that he was not a registered chemist and druggist, but that he did not use any of the drugs for illegal purposes.

At the close of the case his learned Counsel did not submit that the appellant supplied drugs to Council and medical practitioners: his submissions were that as Mr. Gooding was a registered chemist, that was sufficient; that the Police ought to have found out that Mr. Gooding did not receive his supplies from the appellant in order to establish that the appellant possessed drugs for an illegal purpose; that the court should believe that the appellant supplied Mr. Gooding with drugs from the other store; and that the Police had a duty to prove the intent of possessing the poisonous drugs for an illegal purpose.

The learned Magistrate relied on Section 60 of the Pharmacy Act, which will be quoted and discussed later in this judgment. Having regard to the evidence for the prosecution and the statements made to the police by the appellant, the learned Magistrate did not believe the appellant’s evidence; his finding was that it was the appellant who was in possession of the poisonous drugs found in the back store on the 23rd June.