The Queen V. Alexander A. Ohaka (1962) LLJR-SC

The Queen V. Alexander A. Ohaka (1962)

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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.

On the law the Magistrate’s view was that the mere possession of the drugs by a person not qualified under Pharmacy Act to possess or deal in them is evidence of intent to use them for (an) illegal purpose. The onus is on the accused that his possession of drugs was not for any illegal purpose.The Magistrate held, on the evidence and the law, that the appellant was in possession with such intent, and convicted him on the charge.

In the appeal to the High Court, learned Counsel for the appellant referred to Section 60 of the Pharmacy Act, and submitted that there was no evidence to show that the appellant was not covered by one of the exceptions, and that the prosecution had failed to prove that he had the drugs for an illegal purpose. Those submissions appeared to relate to two complaints – (1) that the Magistrate had erred in law when he ruled that there was a prima facie case, and (2) that he erred in convicting the appellant. Learned Counsel added (in his reply) that the invoices were not challenged at the trial as not being genuine, and submitted that the prosecution should have called Mr. Gooding.

The learned Judge in his judgment agrees with the view of the evidence taken by the Magistrate; on the legal submissions for the appellant, he observes that there was nothing to prevent the appellant from claiming to be covered by one of the exceptions of Section 60, but the appellant had not so claimed: the appellant merely relied on the defence that it was his chemist who had bought all the drugs – a defence which the Magistrate did not believe. The learned Judge was of opinion, having regard to the circumstances of the case and the evidence which the Magistrate believed, that the conviction was right.

The appeal from the High Court judgment was heard on the 21st September, 1962. Learned Counsel began with a complaint that the magistrate erred in law when he over-ruled the submission that there was no case to answer, and that the Judge, in view of that error, ought not to have confirmed the conviction.

Learned Counsel drew a distinction between-

A. A provision which creates an offence and states circumstances which save a person from being guilty of the offence;

B. A provision which creates a presumption of illegal intent and states circumstances which save a person from coming within the presumption.

In regard to case A he concedes that the onus of proving the existence of exempting circumstances lies on the defendant; in regards to case B he claims that the onus is on the prosecution to prove the non-existence of the exempting circumstances. An example of case A is a section which makes it an offence to deal in sugar without a licence from the appropriate Minister.

It lies on the defendant to prove that he had a licence R. v. Oliver, (1944) K.B. 68. That rule is embodied in Section 62 of the Criminal Procedure Act, which provides that-

Any exception, exemption, proviso, condition, excuse, or qualification, whether it does or does not in any enactment creating an offence accompany in the same section the description of the offence, may be proved by the defendant, but need not be specified or negatived in the complaint, and if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the complainant.

(It is also embodied in Section 142 of the Evidence Act). Learned Counsel for the respondent in the appeal relied on Section 62 of the Criminal Procedure Act. We think that it applies to case A, but not to case B.Mention of Section 140 of the Evidence Act was made, but learned Counsel for the respondent did not rely on it, and the section was not discussed; so no opinion will be offered on its meaning.

It is the meaning of Section 60 of the Pharmacy Act which is in question here, as an example of case B; it provides that-

Any person found in possession of, or making, selling or transferring any poison or poisonous matter, shall, unless he is a registered or licensed medical practitioner, a registered or licensed dentist, a qualified veterinary surgeon, or a person authorised under this Act to deal in such poison or shall have received the same from a person authorised to deal therein, be deemed to be in possession of or to be making, selling or transferring the same for an illegal purpose unless he shall prove the contrary.

The argument for the appellant is that the Police have the duty to prove that the exceptions of Section 60 do not exist. Take for example the exception of being a registered medical practitioner. The suggestion is that the Police could have produced the list of medical practitioners published in the Gazette, to show that the defendant is not in the list. That suggestion need not be examined: for the argument clearly breaks down when one comes to the last exception in Section 60, namely the one given in these words –

“or shall have received the same from a person authorised to deal therein.”

The Police cannot know from whom the defendant has received the poison found in his hands; but he is not bound to give information; which creates a situation of impossibility. All the excepted cases in Section 60 are on a par; if in the last case the burden must fall on the defendant, it must equally fall on him in the others, too.

There is also this consideration. Suppose that there was no such statutory provisions as Section 62 of the Criminal Procedure Act or Section 142 of the Evidence Act, to invoke in case A (on exceptions in the enactment creating the offence): we would have had to fall back upon the principle in R. v. Oliver (1944) K.B. 68. There it was held that the onus was on the appellant to prove that he had a licence, as being a fact peculiarly within his knowledge, and the prosecution was under no necessity of giving prima facie evidence of the non-existence of a licence. It was argued for Oliver that the information could easily have been obtained from official sources.

Early in the judgment the Court said with emphasis-

The point is wholly without merits, inasmuch as no one knew better than the appellant whether he had a licence or not.

That principle is enshrined in Section 141 of the Evidence Act which provides that-

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

We cannot see any reason why, if that principle applies to case A (on exemptions from guilt), it should not apply equally to case B (on exemptions from presumption of guilty intent). We think the principle applies equally to the interpretation of Section 60 of the Pharmacy Ordinance, and that the onus is on the defendant to prove the presence of circumstances which save him from that presumption.It remains to add that R. v. Kakelo, 27 Cox, 454, does not help the appellant, nor does R. v. Ezeocha, 12 W.A.C.A. 56.

It was therefore right to call on the appellant for his defence, and the onus was on him to prove that he had the poisonous drugs found in his possession without any intent that they should be for an illegal purpose. He could have discharged that onus on a balance of probabilities by showing that more probably than not he had those drugs without any such intent: R. v. Carr-Briant, (1943) K.B. 607; R. v. Podola, (1959) 3 All E.R., 418.

His evidence has been summarised. Three items in it have been drawn to our attention in these submissions-

(i) that the prosecution did not challenge the invoices produced by the appellant as showing that the poisonous drugs in the back store had been ordered by Mr. Gooding.;

(ii) that the appellant thought he could obtain drugs and pass them to Mr. Gooding to dispense;

(iii) that the appellant had the drugs to supply various institutions, but there was no finding that that was not so.

There was no express finding probably because no point in that regard was made in the concluding address of Counsel for the defence. Apparently Counsel did not think the appellant’s evidence of an intent to supply doctors and District Councils was worth relying upon; no complaint in that regard was made in the appeal to the High Court, and it is contrary to practice that a complaint on an aspect of the evidence should be made for the first time in the further appeal from the High Court.

However, the learned Magistrate said plainly enough that he did not believe the appellant and that he was an evasive and untruthful witness; by necessary implication he did not believe that the appellant had the drugs with any such intent. That item in his evidence, and the other two items above referred to, had to be considered in the light of the accepted evidence for the prosecution: that the Police Officer and the Senior Medical Officer asked to be shown all the poisons on the premises on the 22nd June, 1960; that Mr. Gooding showed his poisons list and all his stock, but the appellant did not reveal his store of poisonous drugs; that when they were found on the 23rd, he said nothing about them, and that Mr. Gooding was surprised to see them and suggested that some unscrupulous traders must have put them where they were found on which the appellant made no comment; and that the appellant in his first statement to the police said that his chemist might not know anything about the drugs he had left unrevealed and unexplained. Put those weighty sinister facts in the balance, and the appellant’s evidence is plainly the mere dross of after thoughts invented for the sake of putting up a plausible defence.

It remains to say that R. v. Opia, W.A. C. A 114, is not relevant. There the charge alleged that Opia’s intent was to sell the drugs found in his possession contrary to a particular section of the Pharmacy Act, and the judgment is to the effect that the intent alleged was not an illegal purpose. Here the charge alleges merely that the appellant had certain drugs “with intent that they shall be used for an illegal purpose” – which follows the terms of Section 59 of the Act, and there is no suggestion that that is not a sufficient statement of a charge under that section. The charge does not allege any specific illegal purpose; so R. v.Opia does not apply.

The appeal is dismissed, and the courts below shall now take steps to enforce the orders of the Magistrate.

Other Citation: (1962) LCN/1016(SC)