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THE ATTORNEY-GENERAL OF SIERRA LEONE
V.
JOSIAH A. SHORT
WEST AFRICAN COURT OF APPEAL HOLDEN AT SIERRA LEONE
19TH DAY OF MARCH, 1937
2PLR/1937/13 (WACA)
OTHER CITATION(S)
(1937) III WACA PP. 158 – 160
LEX (1937) – III WACA PP. 158 – 160
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
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BETWEEN:
THE ATTORNEY-GENERAL OF SIERRA LEONE — Respondent
AND
JOSIAH A. SHORT — Appellant
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REPRESENTATION
S. J. Barlatt — for Appellant
The Solicitor-General — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Charge against licensed druggist for failure to keep record of supplies and sales of dangerous drugs — Appellant discharged by Magistrate at close of case for prosecution — Appeal by way of petition by Attorney-General to Supreme Court — Direction by Supreme Court to convict — Appeal therefrom— Meaning of “a person who supplies” discussed
HEALTHCARE AND LAW — DRUGS AND PHARMACEUTICAL PRODUCTS:- Person who supplies any dangerous drug — Meaning of under rule 10 (c) of the Dangerous Drugs Rules, 1929 — Legal effect
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- No case submission made after prosecution’s case but before defence opened case — Order of discharge arising therefrom — Appeal of — Proper order for appellate court to make — Whether one for conviction of accused based on evidence of prima facie case
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. Appellate direction of Supreme Court set aside. Case remitted to Magistrate to hear defence.
2. Once it was shown that appellant was prima facie a person within the meaning of the words “every person who supplies any dangerous drug,” the provisions of the rule requiring him to make an “entry with respect to any dangerous drug purchased,” etc., become operative, and the prosecution led evidence to show that the appellant did not comply with this requirement.
2. The prosecution made out before the Police Magistrate a prima facie case for the appellant to answer and the Magistrate erred in not calling upon the respondent to reply thereto. The order of the Supreme Court is to be varied by directing, in lieu of the directions given in that order, that the case be remitted to the Police Magistrate to hear the defence of the appellant to the charge.
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MAIN JUDGMENT
The following joint judgment was delivered: per KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBBER, C.J., SIERRA LEONE.
In this case the appellant was charged on the 11th September, 1936, in the Court of the Police Magistrate, Freetown, as follows:
“For that you the said J. A. Short of Ola Kissy Street, being a person duly registered and licensed to dispense drugs and poisons at your shop situated at No. 61a Kissy Street in Freetown, in the Police District of Free town in the colony of Sierra Leone, sometime during the month of August, 1936, did fail to make entries in the register or a book (kept for the record of all supplies and sale of dangerous drugs obtained and sold by you) contrary to sec. 10 sub-sec. (c) of the Dangerous Drugs Rules, 1929 made under Ordinance No. 10 of 1926.”
He pleaded “not guilty,” and at the close of the case for the prosecution his Counsel submitted that no case had been made out for him to answer. The Police Magistrate in a considered judgment upheld this contention and discharged the appellant.
The Attorney-General petitioned the Supreme Court against the order of discharge, and upon the petition coming before Macquarrie, J., he recorded the opinion that the appellant had committed the offence charged and ordered that the case be remitted to the Magistrate to deal with it in accordance with that opinion, after hearing the appellant on one other submission.
It may be recorded at once that this order cannot possibly be upheld, because the appellant’s defence to the charge has not yet been heard. The most that can be said is that the prosecution has made out a prima facie case for appellant to answer and an order made for the case to be remitted to the Police Magistrate to proceed accordingly. The real question for determination by this Court, then, is whether or not the evidence for the prosecution discloses a prima facie case.
Shortly, the facts adduced by the prosecution are that the appellant is a licensed druggist under the Dangerous Drugs Ordinance, 1926. From the beginning of 1986 up to the date of the charge, he had purchased 6 ounces of tincture of opium and 84 ounces of morphia (both dangerous drugs within the meaning of the Ordinance) from the West African Drug Company. These were obtained on orders “for dispensing purpose” signed by appellant as “Drug gist.” On the appellant’s shop being visited by an Assistant Commissioner of Police in August 1986, the appellant was unable to produce, on demand, any Dangerous Drugs Register and he explained its absence by saying that it had been stolen. He produced 31/2 ounces of tincture of opium and stated that he had no other dangerous drugs, stating that he had used the remaining quantity (i.e, 21 ounces of tincture of opium and 94 ounces of morphia) for his personal use. Thereupon he was charged as above recorded with contravening rule 10 (c) of the Dangerous Drugs Rules, 1929, which reads as follows—
“10. Every person who supplies any dangerous drug shall comply with the following provisions:
“(c) he shall make the entry with respect to any dangerous drug purchased or otherwise obtained by him on the day on which it is received, and with respect to any sale or supply by him of any dangerous drug on the day on which the drug is despatched or delivered; or where that is not reasonably convenient on the day following the day on which the dangerous drag is received, or despatched or delivered.”
It is clear that the first essential to secure a conviction under this rule is to show that the person charged is a “person who supplies any dangerous drug” within the meaning of the rule. In the present case, since there was no evidence that the appellant supplied any dangerous drug to any other person, could it be said that the prosecution had shown him to be “a person who supplies”‘? The learned Police Magistrate held that it could not. The learned Judge in the Court below, on the other hand, held that the “words, ‘every person who supplies’ are no more than a short expression to mean and include every person who carries on or holds himself out as carrying on the business of supplying.”
We agree with this view. The question then arises: Was there prima facie evidence that the appellant was such a person? We think that the following facts taken together do constitute such prima facie evidence, viz:-
1. The fact that appellant was registered as a licensed druggist.
2. The fact that he admitted having kept a Dangerous Drugs Register.
3. The fact that in his capacity as a druggist, he obtained a large quantity of dangerous drugs “for dispensing purpose,” i.e. for supplying to customers in prescriptions to be dispensed by him.
4. The fact that he could not produce, and therefore had presumably used for dispensing (i.e. supplying to customers), almost all the dangerous drugs purchased by him for dispensing purposes.
Once it was shown that appellant was prima facie a person within the meaning of the words “every person who supplies any dangerous drug,” the provisions of the rule requiring him to make an “entry with respect to any dangerous drug purchased,” etc., become operative, and the prosecution led evidence to show that the appellant did not comply with this requirement.
We therefore hold that the prosecution made out before the Police Magistrate a prima facie case for the appellant to answer, and accordingly order that the order of the Supreme Court be varied by directing, in lieu of the directions given in that order, that the case be remitted to the Police Magistrate to hear the defence of the appellant to the charge and, after so doing, to decide the case in the light of the opinions hereinbefore expressed.
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