Durbeej v Hughes; Durbeej v Persaud; Durbeej v Persaud
| Jurisdiction | Guyana |
| Judge | Bollers, C.J.,George, J.A.,Gonsalves-Sabola, J.A. |
| Judgment Date | 12 December 1972 |
| Neutral Citation | GY 1972 CA 20 |
| Docket Number | 3699 of 1971 |
| Court | Court of Appeal (Guyana) |
| Date | 12 December 1972 |
High Court
Bollers, C.J., George, J.A.; Gonsalves-Sabola, J.A.
3699 of 1971
Mr. Lloyd Luckhoo S.C. for the appellent
Mr. Subryan for the respondents.
Commercial Law - Sale of goods — Wholesale and Retail prices
The four appeals herein were heard together by consent as they all arose out of the same set of circumstances.
On the 19th April, 1971 the Police visited the appellant's shop at Dundee, Mahaicony, in the East Demerara Judicial District and found there exposed for sale a quantity of Nestle's condensed milk, evaporated milk, Brunswick Sardines and corned beef, all price controlled articles, the retail selling price whereof, not legibly marked thereon. In respect of each of the aforesaid four types of articles the Police instituted a separate charge of “exposing for sale a price controlled article by retail without the retail selling price marked thereon”.
The appellant duly appeared before the magistrate of the East Demerara Judicial District and pleaded guilty to each of the four charges following which the magistrate proceeded to sentence him on each to pay a fine of $500.00 or alternatively serve three months imprisonment and gave him six months to pay.
It would appear that although the four complaints were dealt with together the magistrate did not expressly ask for the consent of all the parties before he proceeded to deal with them.
From the conviction and sentence in respect of each complaint a separate appeal has been brought in this court. The grounds of appeal so far as sentence is concerned will be dealt with later.
The convictions were attacked on the ground that the prosecution ought to have preferred one and not four charges since the facts show, so the appellant contends, one exposure of four price controlled articles. Before this issue is gone into let us here deal with and dismiss a subsidiary issue which arose. In one of the complaints (C.J. No. 3747/71) the statement of offence misdescribed the relevant Order placing Brunswick sardines on the price controlled list as “Amendment No. 15 Order 1971”. It ought to have read “Order No. 5” instead. Counsel for the appellant contended that that misdescription was fatal. This Court is of the opinion that it was obviously a clerical error that worked absolutely no prejudice on the appellant, and exercising its powers under “S. 28” of the Summary Jurisdiction (Appeals) Ordinance, Chapter 17, the charge and the conviction order are amended accordingly. In any event the complaint was otherwise unexceptionable, complying with “section 7 (4)” of the Summary Jurisdiction (Procedure) Ordinance Chapter 15 relating to the form and requisites of a complaint, in particular stating the section of the Trade Ordinance which created the offence and prescribed the penalty. If authority be needed for the amendment made by this court one has to go no further than the cases of Ramsarran v. Hevliger (1956) L.R.B.G. 139 and Sooknanan v. Hopkinson (1961) 4 W.I.R.1.
“Section 5 (4)” of the Trade Ordinance 1958 created the offence of breach of any Order made under the said “section 5”. Under that Section the Trade (Control of Prices) Order 1963 (No.74/1963) was made, Article 4 (1) whereof reads as follows:–
“The retail selling prices of all price-controlled articles sold, offered or exposed for sale, by retail shall be legibly marked thereon or otherwise indicated in plain figures for the information of the public”.
The first and second schedules to that Order listed articles whose maximum wholesale and retail prices were therein specified. Subsequently that Order (No. 74 of 1963), the principal Order, was amended from time to time by now Orders adding new articles to the price controlled list in the first and second schedules.
The four complaints the subject of these appeals, were instituted by reason of the inclusion in one or other of such Orders of each of the four types of articles charged in each of the said complaints. The offence charged in each complaint, by “section 5 (4)” of the Trade Ordinance 1958 (as amended by the Trade (Amendment) Act No. 5 of 1971) arose from a breach of “Article (4) 1” of the Principal Order (No. 74 of 1963). That article requires a legible marking of the retail selling prices of “all” price controlled articles. Section 37 of the Interpretation and General Clauses Act 1970 is present to tile mind of the court. That section reads as follows:–
“Where an Act or omission constitutes an offence under two or more written laws, the offender shall, unless it is otherwise expressly provided, be liable to be prosecuted and punished under either or any of those laws, but a conviction or an acquittal upon such prosecution shall be a bar to prosecution for the same offence, or for an offence which is substantially the same offence, under any other of such laws”).
The appellant cannot obtain assistance from any of the provisions of this section because the case here is not one where one Act is an offence under two or more written laws: it is a case where, as will be clearly shown presently, there are four Acts of omission contrary to one written law. The case of Jaglaloo v. Berumsingh (1941) L.R.B.G. 49 cited by counsel for the appellant has thoughtfully to be considered: In that case the appellant had been convicted on taro complaints brought under two separate sections charging him respectively with custody of distillery apparatus and unlawful possession of bush rum. Both complaints arose out of his being found at one and the same time in...
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