Rex V. Dick Ogiiulu Opia (1942)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal late—Section 29 of the Poisons and Pharmacy °refinance No. 42 of 1936—” Intention to sell ” contrary to section 14— Illegal purpose—Absurdity and injustice resulting from strict grammatical interpretation of Ordinance.
Held: That the words ” for any illegal purpose ” inset:ilea 29 of the Ordinance do not include an intention to sell in contravention of section 14 of the OrAinance.
The facts are fully set out in the judgment. Cases referred to :—
- Warburton v. Loveland (1828) 1 Hudson & B. Irish Cases 623.
- King v. Vasey and Lally (1905) 2 K.B. 748. J. I. C. Taylor for Appellant.
S. A. McKinstry for Respondent.
The following joint judgment was delivered:,––
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND FRANCIS, JJ., NIGERIA.
In this case the appellant was charged in the Calabar-Aba Judicial’ Division of the High Court upon three counts with ” Sale ” or possession of poison for illegal purpose contrary to section 29 ” of the Poisons and Pharmacy Ordinance No. 42 of 1936 ” and the particulars given of the respective counts were:—
1st count—” Dick Ogbulu Opia on or about the 12th day of ” December, 1941, in the Province of Calabar had in his possession 508 ” tablets of M & B 693 the said 508 tablets of M & 13 693 being a poison ” included in the Second Schedule of Poisons and Pharmacy Ordinance ” JNo. 42 of 1936 including the addition made in accordance with the ” provision of section 3 of the Poisons and Pharmacy Ordinance No. ” 42 of 1936 by Public Notice No. 76 of 30th November, 1939, to the ” aforesaid Second Schedule of the Poisons and Pharmacy Ordinance ” No. 42 of 1936 with intent that the said 508 tablets of M & B should ” be used for an illegal purpose to wit, for sale to James Obong Ebong the ” said James Obong Ebong being an unqualified and unlicensed member ” of the general public contrary to section 14 of the Poisons and ” Pharmacy Ordinance No. 42 of 1936 the said Dick Oggbulu Opia neither” being a. selling dispenser nor a Chemist and Druggist nor being ” authorised in that behalf in accordance with regulations made under ” the said Poisons and Pharmacy Ordinance No. 42 of 1936.”
2nd count—” Dick Ogbulu Opia on or about the 12th day of ” November, 1941, in the Province of Calabar had in his possession ” 1,500 tablets of Sulphanilamide the said 1,500 tablets of ” Sulphanilamide being a poison included in the Second Schedule ” of Poisons and Pharmacy– Ordinance No. 42 of 1936 including ” the addition made in accordance with the provision of section 3 of the ” Poisons and Pharmacy Ordinance No. 42 of 1936 by Public Notice ” No. 76 of 30th November, 1939, to the aforesaid Second Schedule of ” the Poisons and Pharmacy Ordinance No. 42 of 1936 with intent that ” the said 1,500 tablets of Sulphanilamide should be used for an illegal ” purpose to wit, for sale to James Obong Ebong the said James Obong ” Ebong being an unqualified and unlicensed member of the general ” public contrary to section 14 of the Poisons and Pharmacy Ordinance ” No. 42 of 1936 the said Dick Ogbulu Opia neither being authorised ” in that behalf in accordance with regulations made under the said ” Poisons and Pharmacy Ordinance No. 42 of 1936.”
3rd count—” Dick Ogbulu Opia, on or about the 12th day of ” December, 1941, in the Province of Calabar had in his possession six ” packets containing Novarsenobillon (N.A.B.) the said six packets ” of Novarsenobillon (N.A.B.) being a poison included in the ” Second Schedule of Poisons and Pharmacy Ordinance No. 42. of 1936 ” with intent that the said six packets Novarsenobillon (N.A.B.) should ” be used for an illegal purpose to wit, for sale to James Obong Ebong ” the said James Obong Ebong being an unqualified and unlicensed ” member of the general public contrary to section 14 of the Poisons and ” Pharmacy Ordinance No. ,42 of 1936 the said Dick Ogbulu Opia neither ” being authorised in that behalf in accordance with regulations made
under the said Poisons and Pharmacy Ordinance No. 42 of 1936.” From these particulars two important points emerge, viz :—
First that the appellant was charged only with possession of poisons with intent that they should be used for an illegal purpose, no question of actual sale arose, and secondly that the only illegal purpose alleged was sale in contravention of section 14 of the Ordinance.
The two sections in question read as follows :—
” 29. Any person who shall sell or transfer, make or possess any ” poison or poisonous matter, with the intent that it shall be used for ” any illegal purpose shall be liable to a fine of one hundred pounds or ” to imprisonment for three years or to both.”
” 14. No person shall sell any poison specified in the Second Schedule ” unless lie is a selling dispenser or- a chemist and druggist or is ” authorised in that behalf by or in accordance with regulations made ” under this Ordinance.
” Penalty :—A fine of one hundred pounds or imprisonment for ” twelve months or both.”
The appellant was convicted upon all three counts and sentenced to one year’s imprisonment with hard labour on each taint the sentences to run concurrently.
Against these convictions the appellant has appealed to this Court upon one question of law only. His contention is that an intention to sell in contravention of section 14 of the Ordinance is not an ” illegal purpose ” within the meaning of section 29. That is the sole question—and a difficult question—for our decision.
We cannot agree with the contention of counsel for the appellant that the meaning of the words ” illegal purpose ” must be confined to an intent to commit an indictable offence. In their ordinary sense the words clearly include an intention to commit any illegal act, i.e., an act prohibited by law. The words, therefore, if given their ordinary meaning include an intention to sell in contravention of section 14. But is it proper to give the words their ordinary meaning, when, as it is argued in this case, to do so leads to absurdity and hardship and goes beyond the intention of the legislature? Upon this point a passage in the 7th Edition of Maxwell on the Interpretation of Statutes at page 198 is pertinent :—
” Where the language of a statute, in its ordinary meaning and ” grammatical construction, leads to a manifest contradiction of the ” apparent purpose of the enactment, or to some inconvenience or ” absurdity, hardship or injustice, presumably not intended, a ” construction may be put upon it which modifies the meaning of ” the words, and even the structure of the sentence. This may be ” done by departing from the rules of grammar, by giving an ” unusual meaning to particular words, by altering their collocation. ” by rejecting them altogether, or by interpolating other words, under ” the influence, no doubt, of an irresistible conviction that the ” Legislature could not possibly have intended what its words signify, ” and that the modifications thus made are mere corrections of careless ” language and really give the true meaning. Where the main ” object and intention of a statute are clear, it must not be reduced ” to a nullity by the draftsman’s unskilfulness or ignorance of the law. ” except in a case of necessity, or the absolute intractability of the ” language used. The rules of grammar yield readily in such ease., ” to those of common sense.”
The statement of the law set out in this text is fully supporte by a long series of authorities commencing with Warburton r Loveland (1828) 1 Hudson & B. Irish Cases 623, a case which i, frequently cited in subsequent cases upon the point. Further thifirst and most material sentence of the text was quoted, obvious1,-, with approval, by Lord Alverstone, L.C.J. in the much more recent case of the King v. Vasey and Lally (1905) 2 K.B. 748.
Accepting this text as a guide for the proper interpretation of section 29 of the Ordinance, we have to examine the contention that to construe the words ” illegal purpose ” as including am intention to sell contra. section 14 leads to such manifest absurdit-, and injustice that it cannot have been the intention of the legislature. We are of opinion that the contention must be upheld.
The only offence created by section 14 is sale. The section Rex v does not make offering for sale an offence. If the legislature had Dick intended that offering for sale should be an offence it would have Ogbulu been the simple and natural course to adopt the words commonly °Pia‘ used in recent legislation ” No person shall sell or offer for sale, Kingdom,
etc. “.C.J.
Butler Lloyd The maximum penalty which may be imposed under the section and
for the offence of sale is a fine of one hundred pounds or imprison- Francis meat for twelve months or both. That is to say the offence would JJ* amount to only a misdemeanour within the meaning of section 3
of the Criminal Code.
This being so is it conceivable that the legislature can have intended the obvious absurdity and injustice that a man who merely offers to sell without actually selling (or, to put it in another way, has the intent to commit an act which would be an offence against section 14 but does not actually commit that act) should be guilty of an offence contra section 29, an offence of a far more serious nature punishable with a maximum penalty of a fine of one hundred pounds or imprisonment for three years or both and therefore classified under section 3 of the Criminal Code as a felony?
We think not.
We hold, therefore, that the words ” for any illegal purpose ” in section 29 of the Ordinance do not include an intention to sell in contravention of section 14 of the Ordinance.
The appeal is accordingly allowed, the convictions and sentences are quashed and it is ordered that upon each count a judgment and verdict of acquittal be entered. The appellant is discharged.
ORDER
No order as to the exhibits is made by this Court, but the appellant or the police are at liberty to apply either to the Court below or to a Court of Summary jurisdiction with the necessary jurisdiction for an order as to the disposal of the exhibits.
