[1952] EACA 289

### APPELLATE CRIMINAL

## Before SIR HECTOR HEARNE, C. J., AND WINDHAM, J.

# NEMCHAND JESHANG SHAH (Original Accused 1), HARAKHCHAND RAICHAND SHAH (Original Accused 2), Appellants

## REGINA, Respondent (Original Prosecutrix)

#### Criminal Appeals Nos, 336 and 337 of 1952

(Appeal from the decision of the First Class Magistrate's Court at Nairobi-R. C. Laming, Esq.)

## Defence (Control of Prices) Regulations, 1945—Sugar sold above controlled price—Proof of partnership—Surplusage—Relevance of Regulation 11 (1)— Convicted as individuals.

Two appellants were convicted of selling sugar in excess of the permitted price and were stated in the charge to be partners in the firm styled African Ration and Cutlery Store, Nairobi.

The trial Magistrate found that this partnership had been sufficiently proved and also found that both appellants made the sale in which the excessive price was charged.

The main evidence of partnership consisted of two forms of application for a licence in which the appellants' names were given as the names of the "proprietor, partner or owning company". It was conceded that a third accused, who pleaded guilty, had signed the first form and it appeared that the signature on the second form, though in the name of the first appellant, was in the handwriting of the accused who had pleaded guilty.

Held $(28-8-52)$ .—(1) No prima facie case of partnership had been established.

(2) The Magistrate having held the appellants to have sold and there being evidence of this the appeals must be dismissed.

Case referred to: Rex v. Barraclough (1906) 1 K. B. 201.

#### Mandavia for appellants.

Todd, Crown Counsel, for respondent.

JUDGMENT.—The appellants in these consolidated criminal appeals Nos. 336 and 337 of 1952, who were respectively the first and second accused at the trial, were convicted of the offence of selling price-regulated goods, namely sugar, at a price in excess of the permitted selling price for such goods, contrary to regulation 11 (1) of the Defence (Control of Prices) Regulations, 1945. In the particulars of the charge the two appellants together with a third accused who pleaded guilty, were stated to be "partners in the firm styled as African Ration and Cutlery Store, Nairobi", and the sale was alleged to have taken place at that store.

The main defence of the two appellants at their trial, and the main argument advanced on their behalf before us on appeal, was that the Crown failed to prove that they were partners in the firm as alleged in the particulars. The learned trial Magistrate found that their partnership had been sufficiently proved. He also made a finding that both accused made the sale in which an excessive price was charged for the sugar. He accordingly found them both guilty under regulation $11(1)$ .

Upon careful considering the oral and documentary evidence adduced at the trial we are of the opinion that the Crown failed to prove beyond reasonable doubt that the appellants were in partnership. The main evidence relied on by the Crown and accepted by the Magistrate as establishing the partnership consisted of two forms of application for a licence under section 5 of the Traders Licensing Ordinance, No. 11 of 1951, produced as exhibits 8A and 9, and dated 2nd January, 1951, and 5th May, 1950, respectively. In both of these forms the application is for the carrying on of a business under the name of "African Ration and Cutlery Store" and in each case the names of the "proprietor, partner or owning company" are given as Nemchand Jeshang and Harakhchand Raichand. who are the first and second accused-appellants respectively. It is conceded by the Crown that the later application, exhibit $8A$ , is signed by the third accused, R. L. Haria, who pleaded guilty, and that its contents cannot therefore constitute evidence against his co-accused. A perusal of the earlier application, however, exhibit 9, which purports to be signed by Nemchand Jeshang the first accusedappellant, shows that the signature "Nemchand Jeshang" is almost certainly in the same handwriting as the signature and text in exhibit 8A which the Crown concedes is that of the third accused R. L. Haria. If that is so, then it cannot have been in fact signed by the first accused-appellant. This point appears to have escaped the attention of the learned trial Magistrate. In the result, the document exhibit 9 can no more bind or constitute evidence against the first accused-appellant, or the second accused-appellant, than could exhibit 8A. The only other evidence relied on by the learned trial Magistrate as establishing a partnership between the two accused-appellants was that they both served in the shop and were considered by witnesses to be the persons "running it". This, however, would be equally consistent with their being co-employees engaged by the proprietor to carry on the store business, and cannot be held to afford unequivocal evidence of a partnership. We therefore hold that the Court of trial erred in holding that the Crown had established even a prima facie case of partnership between the two accused-appellants.

This, however, is by no means the end of the matter. For the allegation, in the particulars of the charge, that these two appellants, together with the third accused, were partners, was in our view mere surplusage, and as such it did not require to be proved so as to establish the charge but can be rejected: Rex v. Barraclough (1906) 1 K. B. 201. The only relevance of the question whether they were partners was this, namely that if there was proof of their partnership in the store it would not be necessary to prove against each of them that he personally participated in the illegal sale; for as a partner each would be liable under the absolute prohibition contained in regulation 11 (1) of the Defence (Control of Prices) Regulations, 1945, under which they were charged, which provides that "any person who sells" price-regulated goods at an excess price shall be guilty of an offence. Since they were not proved to be partners, it is therefore necessary to consider whether each or either of them was proved to have personally participated in the sale. That the sugar was sold at an excessive price at the store in question was amply proved and is not disputed.

With regard to the first accused the witness Mashek, who made the purchase, stated in evidence that it was the first accused who actually sold the sugar to him and charged the excessive price for it. Immediately after the sale this witness had pointed out to P. W. I. a price inspector, in the presence of both accused, that the first accused was the actual vendor. The witness Kafunga, who had accompanied him, stated in evidence at first that it was the second accused who had effected the sale, but later, when confronted with both accused, he corrected himself and said it was the first accused. The witness Macharia, who did not enter the shop but stood some five or six yards outside it, stated in

evidence that he thought it was the second accused who actually sold the sugar and took the money. This evidence as to who performed the sale is somewhat conflicting, but upon all the evidence there would seem to be little doubt that it was the first accused who actually sold the sugar and charged the excessive price for it.

With regard to the second accused's complicity in the sale, the evidence is somewhat less strong; but in our view it is strong enough to make us unable to say that the learned trial Magistrate was wrong in holding that both accused "made the sale". To begin with, all prosecution witnesses agreed that nobody except the two accused-appellants was in the shop when Mashek went in and bought the sugar. Mashek states that they were both in the shop when he went in and ordered it. From the small size of the shop, marked with a cross on the photographic exhibit A, it would be unlikely that either accused would have been unaware of what the other accused was doing or saying. Furthermore, when immediately after the sale the price inspector, P. W.1, entered the shop, he states that not only the first but also the second accused shouted out "We have not sold sugar". Had the second accused been unaware of any sale of sugar by the first accused he would hardly have asserted, or been in a position to assert, that neither of them has sold it. His words are far more consistent with a guilty participation in the sale and a panicking denial of it upon the entry of the inspector. So, too, was his action in obstructing Inspector Phillips, P. W.2, on the latter's entry into the shop with P. W.1, according to Inspector Phillips's own evidence.

We are accordingly unable to hold that there was no evidence to support the learned trial Magistrate's finding that both the accused-appellants made the sale, irrespective of whether they were partners. The prosecution evidence, which the Court accepted, establishes that the first accused actually made the illegal sale while the second accused was at least abetting him in so doing and was thereby equally liable under section 22 $(c)$ of the Penal Code. The appeals of both accused against conviction are therefore dismissed.

There remains the question of sentence. The first and second accused were each sentenced to pay a fine of Sh. 1,500 with six months in default and in addition to pay a further fine of Sh. 122/45 with one month in default, the latter fine being five times the amount of the overcharge. It is contended on their behalf that these fines were imposed on the footing that the accused were partners in the running of the store, and would not otherwise have been so severe. Be that as it may, having in view the fact that each accused admitted a previous conviction for a similar offence, and that the maximum fine prescribed under regulation 25 for such an offence in the case of a previous offender is Sh. 20,000, we consider that the fines imposed were by no means excessive, and see no reason to interfere with them, nor with the Magistrate's further order cancelling the trading licence for a period of two years.