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BAHAE HELWANI
V.
COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
2ND DAY OF JUNE, 1944
2PLR/1944/24 (WACA)
OTHER CITATION(S)
2PLR/1944/24 (WACA)
(1944) X WACA PP. 197 – 200
LEX (1944) – WACA PP. 197 – 200
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
DOORLY, J.
M’CARTHY, J.
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BETWEEN:
BAHAE HELWANI — Appellant (Defendant)
AND
COMMISSIONER OF POLICE — Respondent (Complainant)
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ORIGINATING COURT(S)/TRIBUNAL(S)
Appeal by Defendant from the decision of the Supreme Court dismissing his appeal from the decision of the Magistrate.
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REPRESENTATION
E. C. Quist — for Appellant
J. S. Manyo Plange, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Criminal Code, ss. 7(2), 108(1), 108(3), 109 — Unlawful Possession of goods on premises — Proof of
OIL AND GAS — AVIATION FUEL:- Criminal prosecution for unlawful possession of aviation fuel pursuant to s. 108 of the Criminal Code — How treated
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CASE SUMMARY
Defendant was convicted, under s. 108(1) of the Criminal Code, of unlawful possession of ten drums of aviation petrol found in an open space outside his house, which he said were his; and the conviction was upheld by the Supreme Court on appeal from the Magistrate. A new ground of appeal was taken in the West African Court of Appeal — that s.108 is confined to cases where a person has or conveys the property in the street.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held, (allowing the Appeal)
1. that as s.109 of the Criminal Code refers to premises whilst s.108 does not, and s. 108(3) seems to indicate the scope of the whole section and refers (inter alia) to a servant employed to carry something, it becomes doubtful whether s.108 applies to goods not in transit; and s.108 should therefore, on the principle of s. 7(2), be confined to goods in transit.
2. The Chief justice misunderstood the ratio decidendi of Gough, J.’s judgment, which was not based at all upon the doctrine of the ejusdem generis construction, but upon a consideration of what must have been the intention of the legislature having regard to the context of the enactment. Smyly, C.J.’s judgment on the other hand disregards this aspect of the question and is based solely on the statutory declaration that the expression “or” shall be construed disjunctively.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:—
The Appellant was charged in the Court of the Magistrate at Sekondi with “Unlawful Possession: Contrary to section 108(1) Cap. 9″ and the Particulars given were –
“For that you on the 12th February, 1944 at Sekondi in the Sekondi Magisterial District and within the jurisdiction of this Court, were found in possession of 20 drums, each containing 44 gallons of petrol, reasonably suspected of having been stolen or unlawfully obtained.”
The case for the prosecution was that, when Appellant’s house was searched under a search warrant the Police found 20 drums of petrol in an open space outside his house which the Appellant said were his and that he got them from the oil factory, Takoradi, ten of the drums contained aviation petrol. The Magistrate convicted the Appellant of the offence charged in respect of the ten drums of aviation petrol and sentenced him to three months’ Imprisonment with Hard Labour. On appeal to the Supreme Court the conviction was upheld.
The only substantial ground of appeal in this Court is a new one, namely, that the provisions of section 108(1) are confined to cases where a person has or conveys the property in the street.
That question was not raised in either of the Courts because the Magistrate’s Court was bound by a decision to the contrary given by Smyly, C.J. in the Supreme Court in 1915 in the case of I.G.P. v. Afferi and that decision has been generally accepted as correctly expounding the law ever since it was given. It was a decision which, however, was avowedly to the direct contrary of a decision also in the Supreme Court given by Gough, J. in 1909 in the case of Rex v. Amissah and others (Renner’s Reports Vol. I Part II p. 503-4).
It is therefore perfectly in order for Counsel for the Appellant to raise this question for the first time in this Court and ask this Court for a pronouncement upon a point as to which Judges of equal authority in the Supreme Court have taken a different view.
The construction of an English enactment in almost identical terms came under consideration in the Court of Queen’s Bench in the case of Hadle: v. Perks (1866 L.R., Q.B.; 35 L.J., 1866, 160). The enactment in question is section 24 of the statute 2 & S Vict. c. 11, and it was held that that section is supplementary to section 66 of the statute 2 & 3 Vict. c. 71 which gives power to a constable to “stop, search and detain any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained”; and so is confined to the class of case contemplated by that section 66, i.e. to the summary conviction of persons who, under section 66, are liable to be arrested by a constable in the open. To bring a case within section 24 the “having in his possession” must be ejusdem generis with “conveying.’’
That English case has been followed recently in Nigeria in a decision of Kingdon, C.J ., in the case of Police v. Lawani & Another (16 N.L.R., 17), where at the time it was given there existed in the Nigeria law sections corresponding to both the English sections to which reference has been made.
The position is rather different in the Gold Coast. At the time at which both Gough, J. and Smyly, C.J. gave their decisions there was no law in the Gold Coast corresponding to section 66 of the statute 2 & 3 Vict. c. 47, although in 1926 a new section (now section 89 of Cap. 10) was included in the Criminal Procedure Code providing (as the marginal note puts it) for “search without a warrant in certain cases where articles are being conveyed, etc.” We are of opinion, however, that the enactment of this section does not affect the argument in the present case since, in our view, an amendment of the Criminal Procedure Code of this nature could not be held to effect a material alteration in the substance of the Criminal Law under the Criminal Code.
In the absence of a Gold Coast section corresponding to section 66 of 2 & 3 Vict. c. 47 the ratio decidendi of Gough, J. in R. v. Amisah & others (supra) could not, of course, be the same as in Hadley v. Perks (supra). The reason for his decision that the application of section 106(1) (now 108(1)) is confined to goods in transit is given in this passage from his judgment:-
“By s. 7, subs. 3 of the Criminal Code I am not bound to construes. 106 subs. I by a judicial decision on the construction of any other statute. Bu I think that having regard to the provisions relating to searching a house in s. 20 of Ordinance 6 of 1876, and to the distinction which is drawn in sections 107, 108 and 109 of the Criminal Code between ‘possession’ and ‘on the premises,’ and also to the provision in s. 106 subs. 3 that possession by a carrier servant or agent is possession by the person who employed such person to convey anything, the application of section 106 subs. 1 is confined to goods in transit.”
The sections of the Criminal Code to which he refers as 107 and 108 are now omitted but his “109” is now also our 109 and his 106(3) is our 108(3), and his section 20 of Ordinance 5 of 1876 corresponds to our section 84 of the Criminal Procedure Code.
In differing from Gough, J. Smyly, C.J said that “he (i.e. Gough, J.)” held that section 106 subsection (1) was confined. “to goods in transit, in other words that the words ‘having in his possession’ should be construed as ejusdem generis with the words conveying in any manner’; this is a construction which I would be inclined to agree with, were it not that section 6 subsection (3) of the Code seems to me to be conclusively against any such construction, it reads:-
“The expression ‘or’ ‘other’ and ‘otherwise’ shall be construed disjunctively and not as implying similarity, unless the expression ‘similar’ or some equivalent expression is used”.
“Section 106 subsection (1) of the Code does not contain the word ‘similar’ or any equivalent expression and should therefore have been construed by the learned Judge disjunctively and not as ejusdem generis with the words conveying’ in that subsection.”
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“If his attention had been called to section 6 subsection (3) of the Code, I am of opinion that his decision must have been different.”
In saying this we think that the learned Chief justice misunderstood the ratio decidendi of Gough, J.’s judgment, which was not based at all upon the doctrine of the ejusdem generis construction, but upon a consideration of what must have been the intention of the legislature having regard to the context of the enactment. Smyly, C.J.’s judgment on the other hand disregards this aspect of the question and is based solely on the statutory declaration that the expression “or” shall be construed disjunctively.
The omission from section 108 of any reference to “premises” such as was contained in the three sections formerly following this section, and is still contained in section 109, appears to us significant. Moreover although section 108(3), which having regard to the context seems to indicate the scope of the whole section, refers inter alia to the possession of a servant employed to carry something; it does not cover the possession of a servant employed to be in charge of something on his employer’s premises.
At the least, we think that the application of the section to goods not in transit is of doubtful validity; therefore we feel compelled to give effect to section 7(2) of the Criminal Code which reads:-
“This Code shall not be construed strictly, either as against His Majesty or as against a person accused of any offence, but shall be construed amply and beneficially for giving effect to the purpose thereof “.
Thus we find ourselves in agreement with the decision of Gough, J. and differ from the views of Smyly, C.J. We hold as did Gough, J. that the application of section 108 is confined to goods in transit. The appeal is therefore allowed, the conviction and sentence are quashed, and it is directed that a judgment and verdict of acquittal be entered. The Appellant is discharged.
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