African Civil Servants Association V. Bunting Jones (1945)

LawGlobal Hub Judgment Report – West African Court of Appeal

Interpretation to be given to Regulation 5 (1) of the Defence (Prices of Goods) Regulations, 1940, and the two Orders, the Defence (Prices of Goods) (Retail) (No. 2) Order, 1943, and the Defence (Prices of Goods) (Wholesale) (No. 2) Orders, 1943—Test to determine under which Order any particular sale comes is the quantity sold at only time.

The following judgment of the Court was delivered by BEOKU-BETTS, Ao.J. :—

The whole question in this appeal turns upon the interpretation to be given to regulations 5 (1) of the Defence (Prices of Goods) Regulations, 1940, and the two Orders, the Defence (Prices of Goods) (Retail) (No. 2) Order, 1943, and the Defence (Prices of Goods) (Wholesale) (No. 2) Order, 1943. The learned Chief Justice in the Court below held that :—

” To determine under which Order any particular sale comes, it is necessary to examine only the specification in the schedule and the sale itself as regards the goods, the quantity sold and the price”.

In other words, that the test is the quantity sold at any time. Learned Counsel for the Appellant contended that the words :—

“In the wholesale or retail class of business or in both such classes of business”

in regulation 5 (1) of the Defence (Price of Goods) Regulation, 1940, indicate that the test is whether the sale was for the purpose of retail by a retailer or for consumption by the purchaser. For thik he (relies on the statement of Bacon V.C. in the case of Treacher v. Treacher W.N. (74) 4 that

“As a general rule ‘wholesale’ merchants deal only with persons who

buy to sell again; whilst ‘retail’ merchants ^–deal with consumers.”

Unfortunately the report of this case is not available and the quotation is from Stroud’s Judicial Dictionary, 2nd Ed.,. p. 2237. Learned Counsel also referred to the case of Madonna v. McMillan, 1919 S.C. (J.) (4). The report of this case is also not available. The case is summarised in English & Empire Digest, Vol. 25, p. 137, note (b) as follows :-

“Meaning of ‘wholesale’ in Milk (Registration of Dealers) Order, 1918, could not be imported into Milk (Summer prices) Order, 1918, for the purpose of construing the word ‘wholesale’ as used in the latter Order. (2) As there used, wholesale’ meant the sale of milk to a retailer for sale by him to consumer irrespective of the quantity sold”.

This case does not support the contention of the learned Counsel for the Appellant that the statement of Bacon V.C. in Treacher v. Treacher is of universal application, for whilst the word “whole- -sale” as used in the Milk (Summer Prices) Order, 1918, mean sale to a retailer, its use in the Milk (Registration of Dealers) Order, 1918, means something different. Although the word “wholesale” or the word “retail” may differ in many statutes, yet it will be found that in the generality of cases the test is the quantity sold at any time.

In Fairclough v. Roberts, 24 Q.B.D., p. 350, it is stated that “sale by retail” was defined under 4 & 5 William 4 c. 85, s. 19, as a sale of less quantity than four and half gallons quantity being the determining factor. In R. v. Jenkins, 65 p. 857, Smith J. said at page 859

“I read the statutes to mean this, that a wholesale dealer can sell to a minimum of four and half gallons casks, and that everything under that a man under a wholesale licence cannot sell . . . In other words, anything less than four and half gallons is a retail sale, and anything down to and above four and a half gallons is a wholesale sale”.

In the United Kingdom, under the Finance (1909-1910) Act, 1910, the class of wholesaler is differentiated from the class of retailers, and a licence for each class of dealers is required. But still the test of each class of dealers is the quantity sold. In Wood v. Mackenzie, 1925 S.C. (J) 13, in page 14 (note e) of Halsbury’s Laws of England, 2nd Edition, Vol. 19, it is stated that the sale by a wholesale dealer may be wholesale, although the purchaser is an ordinary member of the public and is not himself a retailer. Great support is given for the proposition, that the test is quantity, by the decision of the Court of Criminal Appeal in a case decided in

1943, Rex v. Oliver, 1943, 2 A.E.R., p. 800. In that case the Appellant was charged with having sold sugar as a wholesaler without the necessary licence. He was charged under the Sugar (Control) Order, 1940. This Order, which is to be found in page 752 of Statutory Rules and Orders, 1940, volume II, defines wholesaler thus :—

” wholesaler’ means a person, other than a retailer or manufacturer, who sells sugar by wholesale.”

In page 803 of the report Viscount Caldecote L.C.J. said inter alia:

“A second submission was then made by Counsel for the Appellant to the effect that the Appellant was not a wholesaler within the meaning of paragraph 1 of the Sugar (Control) Order, 1940. We think that the definition of ‘wholesaler’ is clear. It provides in effect that a person who sells sugar by wholesale is a “wholesaler”, but not if he be a retailer or manufacturer who sells sugar also on some occasions by wholesale. The Appellant was clearly one who sold sugar by wholesale having regard to the large quantities which he supplied, running up to 4 tons at a time, and it was not suggested that he was either a retailer or a manufacturer. It was somewhat strenuously argued that the proper test of a ‘wholesaler’ is whether he sells to someone something which the buyer is going to sell again. No doubt purchasers from the wholesaler are often and, indeed, generally, persons who intend to sell again by way of trade the goods purchased, but it is not difficult to imagine many cases in which a wholesaler enters into transactions with persons who have no intention of selling the articles thus purchased “.

In the Defence (Prices of Goods) Order, 1940, there is no definition of “wholesale class of business” or “retail class of business”. Under regulations 5 (1) the Controller is given power to regulate the prices of goods in these classes of business. In the absence of words clearly defining wholesale or retail classes of business, the Controller would be authorised in prescribing the prices to differentiate between the two classes of business and to provide what would constitute retail and what would constitute wholesale class of business. In Grades on Statutes, 4th Edition, p. 229, it is stated :

“One of the principles of law with regard to the effect of ,an enabling act is that if the legislature enables something to be done, it gives power at the same time, by necessary implication, to do everything which is indispensable for the purpose of carrying out the purpose in view.”

In exercise of the power and in accordance with the principles enunciated above, the Controller in making the Defence (Prices of Goods) (Wholesale) (No. 2) Order, 1943, provided that the minimum quantity of wholesale sale of beer shall be one case. It is true that though there is a minimum quantity under the wholesale Order, there is no maximum quantity in the order dealing with retail, and it was contended by the learned Counsel for the Appellant that there is no limit to the quantity a person may sell by retail.

In our opinion the two Orders are complementary one to the other and must be read together. When the retail Order provided the price of beer per bottle, it must be interpreted to mean that the price shall apply in so far as it is not a violation of any of the provisions of the wholesale Order. But apart from the authorities as to the meaning of the word “wholesale”, it is a cardinal rule of construction that the law should be construed according to the intention of the legislative body enacting it save when the language is clear and explicit to the contrary. The regulations are far from clear and explicit. What then is the intention behind these regulations and orders? Clearly it is to prevent profiteering, and it will be absurd to suggest that a trader was guilty of profiteering if he sold at a certain price to a retailer but ceased to profiteer when he sold at the same price to a member of the public for his own consumption, while it is equally fantastic to imagine that a retailer would be running the risk of legal action if he drank a bottle of the beer that he had bought for the purpose of resale. Nor can it be suggested that the legislature ever intended the shop clerk to hold an inquisition with regard to every sale in order to discover whether the purchaser was or intended to become a retailer. We are therefore of the opinion that in the interpretation of these orders the test is the quantity, and when the Appellant sold three cases of beer he should have sold under the price in the wholesale order, and by selling at the price in the retail order he committed the offence of which he was convicted.

The appeal is therefore dismissed.