ACQUAH vs. THE REPUBLIC [1973] 2 GLR 117

CASES REFERRED TO

(1) Heydon’s Case (1584) 3 Co.Rep. 7a; 76 E.R. 637.

(2) Hawkins v. Gathercole (1855) 6 De G.M. & G. 1; 3 Eq.Rep. 348; 24 L.J.Ch. 332; 24 L.T. (O.S.)

281; 19 J.P. 115; 1 Jur. (N.S.) 481; 106 R.R. 1; 3 W.R. 194; 43 E.R. 1129.

(3) Keates v. Lewis Merthyr Consolidated Collieries Ltd. [1911] A.C. 641; 80 L.J.K.B. 1318; 105 L.T.

450; 75 J.P. 550, H.L.

NATURE OF PROCEEDINGS

APPEAL against the judgment of the Circuit Court, Sekondi, that the accused who failed to display rice in her kiosk was guilty of hoarding or keeping goods in a manner likely to create a shortage. The facts are fully set out in the judgment.

COUNSEL

Amarteifio for the appellant.

Adinyira, Assistant State Attorney, for the respondent.

JUDGMENT OF CHARLES CRABBE J.

The appellant was charged with keeping eleven bags of rice in a manner likely to create a shortage of that commodity to the public. Each bag of rice weighed 220 lb.

The case for the prosecution was that on 19 April 1972, some army personnel visited the kiosk of the appellant. It was not locked. They saw that some empty soap boxes and empty sugar boxes had been packed on top of some items. They entered the kiosk. They saw bags of rice covered with a woman’s cover cloth. They collected eleven bags of rice and sent them to the Ghana National Trading Corporation for safe keeping. The matter was reported to the police. According to the prosecution the appellant had not displayed rice anywhere. On the other hand, there were bars of soap which had been cut into pieces which she was selling.

She was found guilty by the learned trial circuit judge. A fine of ¢50.00 was imposed in default of which she would go to prison for two months with hard labour. She felt aggrieved at this and appealed on the ground that:

“(a) The judgment is unreasonable and cannot be supported having regard to the evidence adduced at the trial.

[p.119] of [1973] 2 GLR 117

(b) Further grounds will be filed on receipt of the certified true copy of the proceedings.”

At the hearing of the appeal counsel for the appellant challenged the interpretation of the learned trial circuit judge of paragraph (b) of section 6 (1) of the Price Control Decree, 1972 (N.R.C.D. 17). That is to say, the interpretation which the learned trial judge gave to the expression keeping goods “in a manner likely to create or contribute to a shortage of those goods available to the public.” He contended that failure to display the goods did not constitute keeping goods in a manner likely to create shortage. One could refuse to supply a commodity but at the same time sell that commodity. In his view, there ought to have been some evidence that the appellant refused to sell.

A person who was a well-known trader under the system of trading prevailing in Takoradi, at least, would still have any number of people going to her or coming to her to buy rice. He maintained that it was the refusal to sell which constituted an offence under the provisions of paragraph (b) of section 6 (1) of the Decree. At the material time at which the appellant was supposed to be hoarding rice, she was at the police station in connection with selling soap above the controlled price. Taking into account all the circumstances of this case, it was his view that the appeal should be allowed.

Counsel for the Republic contended that the real issue in the case was what one would determine as amounting to keeping goods in a manner likely to create a shortage. In his view the interpretation of the learned trial circuit judge was the right one and the proper one; and as far as the case as a whole was concerned, the conduct of the appellant clearly fell within the ambit of the provisions of paragraph (b) of section 6 (1) of the Decree.

The rice was concealed: it was covered with packing cases and cloth as revealed by the evidence for the prosecution. That meant that the appellant, having acquired the goods to sell to the public, was preserving the rice or concealing the rice from the public. And since at the material time she was not displaying the rice for sale to the public, then, she was keeping the rice in the manner complained of by the prosecution.

The Price Control Decree, 1972 (N.R.C.D.17), seeks to set a maximum price at which prescribed goods may be sold. It makes it an offence to hoard goods. It allows the seizure, and sale of hoarded goods. It makes smuggling and speculation an offence. It empowers the public to make complaints to the police in respect of any contravention of its provisions, and of any hoarding, smuggling or speculation coming to their knowledge. Inspectors appointed under the Decree have powers of entry, inspection of goods and the examination of accounts, books and other documents. It does not give much of an option to those whose acts might constitute a contravention of its provisions. It is an obligatory

[p.120] of [1973] 2 GLR 117 type of legislation. Being an obligatory type of legislation, the construction of its provisions must take account of the circumstances of its birth. This would be consistent with the rules laid down in Heydon’s Case (1584) 3 Co.Rep. 7a. And in Hawkins v. Gathercole (1855) 6 De G.M. & G.1, Turner L.J. said at p. 22 that the dominant purpose in construing a statute is to ascertain the intent of the legislature, “to be collected from the cause and necessity of the Act being made, from a comparison of its several parts, and from foreign (meaning extraneous) circumstances, so far as they can justly be considered to throw light upon the subject.”

In Keates v. Lewis Merthyr Consolidated Collieries Ltd. [1911] A.C. 641 at p. 642, H.L., Lord Atkinson said:

“In the construction of a statute it is, of course, at all times, and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed, and to the evil which, as appears from its provisions, it was designed to remedy. And I think nothing could be more unsafe or more misleading than to allow oneself to be deterred from putting upon a statute the particular construction, which the consideration of these things would lead one to adopt . . .”

A careful reading of the Decree as a whole shows that it forms part of quite an impressive line of social legislation existing for more than a decade now, which seeks to deal a deadly blow at political and sociological individualism. No longer are persons in Ghana so free in initiative and well-being as to allow the individual an unfettered right to pursue his own good at the dictates of his own taste without the interference of the State in some measure. Society, through our type of social legislation, is conceived of as a new organic whole. A sense of social responsibility is thrown upon us, such as would satisfy the demands of social justice. The events leading to the issue of the Price Control Decree, 1972, are so notorious as not to require evidence. The cause and necessity for the issuing of the Decree is that the country faces a shortage of certain commodities. No evidence is required of the various queues at the provisions stores and departmental stores for essential commodities.

The Price Control Decree, 1972, is intended to remedy that defect in our economic system which allows some people to obtain goods at reasonable prices, keep them, and thus create what may be described as artificial shortage; and sell these goods at “black market” prices, exorbitant prices, and at times, to a select few. The commonalty thus go without such essential goods, or buy them at prices which, under the prevailing conditions of Ghana today, can only be described as criminal. The Decree thus prohibits the hoarding of goods and states the sanctions that would apply for a disobedience to its commands. It

[p.121] of [1973] 2 GLR 117 imposes an imperative and positive duty on the public to do or refrain from doing certain acts. It calls upon the public, in the communal spirit of our generations of yesterday, a tradition, a heritage, to act, each for all and all for each. Its provisions are enforceable by criminal remedies. It is thus, in my view, a penal Decree. It must in that case be construed strictly. It is the type of legislation which does not admit of a reasonable interpretation which will avoid the penalty it imposes.

Section 5 of the Decree under which the appellant was convicted prohibits the hoarding of goods. The word “hoard” is not defined. Section 6 explains the circumstances which shall amount to the offence of hoarding. The circumstances which amount to the offence of hoarding are preceded by the words, “Without prejudice to the generality of section 5 . . .” And section 5 merely states that: “Any person who hoards goods shall be guilty of an offence . . .” The circumstances enumerated in section 6 do not, therefore, limit the interpretation of the word “hoard.” One therefore starts with the ordinary definition of the word “board.” According to the Concise Oxford Dictionary to “hoard” means, among other things, “to overstock oneself with food etc. in war time.”

The circumstances existing in Ghana today is that an economic war has been declared. That is to say, as far as the economy of the country is concerned we are at war; the enemy being any person who acts in such a way as to frustrate the efforts of the authorities in their design to resuscitate the economy of the country and free Ghana from the tentacles of economic wreck and destruction. The learned trial circuit judge in his judgment stated that:

“The question is whether the accused at the material time had not displayed rice in front of her shop? If she had not displayed it then she was keeping it in a manner likely to create shortage since she was arrested during market hours, the bags of rice were eleven in all, of big size and the public wanted to buy them provided the accused was willing to sell them.”

This is what has been challenged by counsel for the appellant. His view is that failure to display the goods should not be construed to mean keeping goods in a manner likely to create a shortage. Nor had the appellant refused to sell rice. In his view refusal to sell would constitute the offence.

There is but little doubt that as far as essential commodities go, such as milk, rice and sugar, we have approached combatant war conditions when such goods are not in plentiful supply. Where there is a plentiful supply such commodities cease to be essential. One can go to a shop, a store, a kiosk and buy as much as one wants. Once there is a shortage then they become commodities of basic necessity. It is true that there is no system of rationing now as during the 1939-45 war. It is common knowledge, however, that the country is caught

[p.122] of [1973] 2 GLR 117 within the grips of an economic war and public policy is geared in that regard towards a victory in the economic sphere. Hence the substitution of the expression “foreign goods” for that of “essential commodities” and even though a rose called by any other name is still a rose, the presence of a large quantity of such goods on the market would depend upon the availability of foreign exchange.

Hence, I believe, the provisions of paragraph (a) of section 6 (1) of the Decree which considers as hoarding the keeping or obtaining of “goods of any one kind in quantities unreasonably in excess of [one’s] immediate requirements.”

It seems to me that under that paragraph, a person who keeps or obtains a bag of rice weighing 220 lb. would, prima facie, be hoarding unless he can show that as a family man with a number of children that amount of rice constitute his immediate requirements for, say, a month. I do not think the law requires that each time one wants to eat rice one has to go to the market to buy a cigarette-tinful of rice. As demonstrated hoarding means to overstock oneself. And immediate means without an intervening medium. It will, therefore, depend upon the circumstances of any particular case whether any person is hoarding any goods within the meaning of paragraph (a) of the said subsection (1).

Under paragraph (b) of the same subsection the question of reasonableness in immediacy is not the issue. What is in issue is the manner in which, in the first place, the goods are kept or obtained; and secondly whether that keeping, or obtaining is likely to create a shortage of those goods available to the public.

The word “likely,” means probable, that is to say, “might.” As used in paragraph (b) the issue would be, not that a shortage could be created or contributed to, not that there would be the possibility of a shortage being created or contributed to, but that there might be created a shortage or a contribution towards a shortage by reason of the manner in which the goods are obtained or kept. It is a case where a subjective measure is intended to satisfy objective standards, however paradoxical that may sound. The particular circumstances of a particular case would determine whether the manner of obtaining or keeping could constitute an offence. When a man goes to the shop and buys a carton of milk and comes home and opens it for the use of his family, it would be ridiculous to say that he is keeping or had obtained the milk in a manner likely to create or contribute to a shortage of milk. Where such a man obtains not one or two cartons but six cartons when the public generally queue for a tin of milk, then, surely, an offence is committed. For how does he alone get six cartons, that is, 576 tins of milk, when there is a queue for milk.

A different situation, however, would arise if that man owns a shop where he intends to sell the milk. He may decide to sell one carton a month. That could not be creating a shortage or contributing to a

[p.123] of [1973] 2 GLR 117 shortage. It is spreading the period of the availability of the goods. A reasonable businessman would keep reasonable quantities of his goods in stock for gradual release to the public in order that there is no shortage of his goods on the market. He will space the rate of selling to correspond with his stocks available so that a shortage is not created. He would not face the paradox of production, in maintaining a scarcity of the goods which it is his business to supply abundantly. His is only a problem of equating the elasticity of supply with the elasticity of demand so that there is no shortage.

Counsel for the appellant contends that failure to display should not constitute keeping goods in a manner likely to create a shortage. By his own arguments, if one is not a well-known trader then there must be certain acts of his which would lead the public to know that he deals in certain goods.

Short of advertising in the newspapers or by hand-bills and the like, displaying the goods at his place of business would appear to me to be the only way by which the public can get to know that he deals in the goods. If anybody challenges this, let him visit any of our markets, be it Makola or Market Circle or Manyakpoguno. So if he does not display them, and he is not well known as a dealer in the goods, what does his conduct amount to under the provisions of sections 5 and 6 of the Price Control Decree, 1972? And there does not appear to be any evidence before the learned trial circuit judge that the appellant was, at the material time, a well-known trader.

Since, as conceded by counsel, the appellant was not charged under the provisions of paragraph (c) or (d) of subsection (1) of section 6, the arguments relating to refusal would not seem to apply. In her statement to the police the appellant stated that :

“I have my store at the gate and the wholesale in the market. In the wholesale I have eleven bags of rice. On 18 April 1972 I bought twelve bags of rice to be retailed. I kept eleven bags in the wholesale and brought one bag to the store to be retailed and after I have finished selling, I go to bring more from the wholesale to the store to be sold.”

The appellant did not tell the police from where she bought the twelve bags of rice. The truth of that statement could thus not be verified. What she said in cross-examination was “I gave money to my children and including myself we formed a queue to buy them.” She used eight children. A child buying a bag of rice of that weight. Some child! Some rice! And if she and her eight children formed a queue as she says, then, surely, rice was not in plentiful supply. And her manner of obtaining the rice is questionable.

On the evidence, the appellant would appear to have three places where she was doing business: the kiosk, the store and the wholesale. In her evidence on oath she said:

[p.124] of [1973] 2 GLR 117

“The soldiers came to where I have a kiosk . . . They took me to the police station. When I was released I found that my store had been broken into . . . When the soldiers came I was selling some of the rice in a pan and half was in the bag inside the kiosk . . .”

Her only witness also spoke of a kiosk. Was there, then, a wholesale where the appellant kept her stock of goods releasing reasonable quantities to the store or kiosk for retaining? This is not very clear from the evidence for the defence. There is no evidence that she took the police or soldiers to her wholesale. The prosecution claim that the appellant did not display rice for sale. The defence claim that rice was displayed. In cross-examination, the witnesses for the prosecution maintained that the appellant was not selling rice and that if she were they “would not have collected the rice in the room to the Ghana National Trading Corporation,” that she would not have been arrested “if she were having a small cup of rice displayed”; that it was not correct that she was selling rice in front of the kiosk; and that she had covered the rice.

The learned trial circuit judge in considering the evidence for the defence detected certain contradictions in that evidence and particularly he detected “a difficulty in trying to reconcile her statements.”

Counsel for the appellant contends that the interpretation of the learned trial circuit judge of the relevant section of the Decree is not correct. That interpretation is based upon whether or not rice had been displayed at the material time in front of the kiosk or shop of the appellant.

Yet the cross-examination of the prosecution witnesses notably of the first prosecution witness and second prosecution witness, by counsel for the appellant at the trial leaves no doubt at all that counsel, the same counsel who now appears before this court, had conceded that lack of display would constitute keeping goods in “a manner likely to create or contribute to a shortage.” Here is an example of the cross-examination of the first prosecution witness:

“Q. Apart from rice there were other commodities on display?

A. Yes there were . . .

Q. In front of the kiosk of the accused she had displayed rice and other commodities?

A. She had not displayed rice. I went there personally.

Q. Whenever the rice she was selling in front of the kiosk got finished she went in and brought more?

A. It is not correct.

Q. She did not cover the rice with any cloth.

A. She covered it. I went there.”

The appellant herself, in her evidence-in-chief concedes the same and stresses that she had displayed, at the material time, “flour in a basin with a cigarette tin, rice the same and congo sugar . . . I displayed

[p.125] of [1973] 2 GLR 117 omo and others,” she added. Her only witness also said “The accused had displayed surf, etc. She had displayed rice on the table. She was not hoarding rice.”

With such a consensus of opinion as to what should constitute a manner likely to create or constitute to a shortage, I find great difficulty in accepting the interpretation now placed upon the section by counsel for the appellant before this court. Having regard to the existing state of affairs at the time the Decree was issued, taking into consideration the cause and necessity for the issue of the Decree, the evidence as a whole leaves me in no doubt that, in the particular circumstances of this case, the learned trial circuit judge was right in his interpretation.

The ideals of economic emancipation which have actuated three successive Governments of Ghana cannot be realised but by assaults upon opportunism, upon the expediency to get rich quick, upon the scorn and derision of those who consider money as their god, upon the shameful practice of creating a scarcity of goods when a little for each would be all that is needed. This is no question of Christian ethics. Our traditional êsprit de corps demands it.

The Price Control Decree, 1972, like its predecessors is a conscious restraining influence which must not be held aloof in the background nor in reserve. It must be enforced vigorously, so as to inject a stabilising and a rationalizing influence on our trade and commercial mores; so as to infuse an influence perhaps subconscious, perhaps positive, on the need for traders to consider the human needs of others for such commodities as are in short supply, in these difficult times in which we live.

It is both a challenge and an opportunity. It is a challenge to rise up to the occasion which the economic circumstances of the country incite. It is an opportunity for those concerned to suppress, for the common good of all, selfish interests and all repulsive propensities in the economic life of the country.

I will dismiss the appeal.

DECISION

Appeal dismissed.

S. E. K.