Case No.:

HC.CR-REV-408-1962

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Criminal Low—Vicarious responsibility—Prices and Charges Order. s. 9—Owner of shop not criminally responsible for servant’s acts Prices and Charges—Vicarious responsibility—Prices and Charges Order. S. 9—Owner of shop not criminally responsible for servant’s acts

Accused No. 1 employed as a seller of meat at a butcher’s shop owned by accused No. 2 sold meat above the maximum price prescribed by law. Both accused No. 1 and accused No. 2 were convicted under Prices and Charges Order 1955 (1956 L.R.O. No. 12). S. 9. On revision the question arose whether the owner, accused No. 2 could be vicariously criminally responsible for this act of his servant.
Held: The owner of a butcher’s shop is not vicariously criminally responsible for acts of his servant in contravention of Prices and Charges Order I9 5. 9.

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT v. MOHAMED EL FAKI ABDALLA AND ANOTHER

HC.CR-REV-408-1962

Advocate: Abdel Haleem El Tahir ... for the accused

Salah El Hassan J. July 8, 1962: —Accused No. 1 and accused No. 2 were convicted under Prices and Charges Order, s. 9, by Au Mahmoud, police magistrate, Omdurman. I confirm the finding in respect of accused No., Mohamed El Faki Abdalla. I quash the finding and sentence in respect of accused No. 2, Osman Ali Hamid.

The facts of the case are very simple.

Accused No. 2 is the owner of several butchery shops in Omdurman, in one of which accused No. 1 is employed as a seller of meat. In the Morning of March 3, 1.962, a certain woman bought 2% kilos of cow-meat and accused No. 1 calculated the price on the basis of 14 piastres per kilo. The woman paid one pound note paper and 65 piastres was refunded to her by accused No. 1. I am satisfied from the evidence in the record that these facts were proved beyond reasonable doubt.

The fixed maximum price for a kilo of cow-meat is 10 piastres. Accordingly accused No. i has fallen within the ambit of section of the Prices and Charges Order.

The learned police magistrates in spite of his satisfaction that this sale was done without the knowledge or participation of accused No. 2. Nevertheless found him guilty under the Prices and Charges Order, S. 9, on the grounds of vicarious criminal responsibility. The learned magistrate wrote a long judgment citing various English authorities touching this point. The criteria of his decision to be summarised is as follows: (a) once the relationship of master and servant is established (which is admitted in this case) and (b) so long as the statute in question (the Prices and Charges Order) does not embody intention (mens rea) as an element of the offence then by vicarious relationship the criminal responsibility of

the master is absolute.            -

With this view I entirely differ. From the various cases cited by the learned magistrate I am only going to deal with one, i.e., Coppen v. Moore

(No. 2) [1898] 2 Q.B. 306.

In that case the court summarily convicted the appellant who was the owner of a shop because one of his workmen contrary to his instructions sold to a customer 8% lbs. of long American ham representing it as Scottish ham. This was an offence against the Merchandise Marks Act, 1887, which expressly makes a master criminally liable -for acts done by his servants in contravention of the Act when acting within the general scope of their employment, although contrary to their masters’ orders, unless the master can show that he has acted in good faith and has done all that it was reasonably possible to do to prevent the commission of offence by his servants.

Of course the general principle of law is “Nemo reus est nisi mens sit rea” but it is subject to exceptions which are created by express legislation as in this case cited above. In the Sudan we have no such express legislation. The Prices and Charges Order never referred to vicarious criminal liability of the master and accordingly we have to apply the, general rule and the master can never be liable unless guilty intention or at least knowledge is proved on his behalf, which never happened in this case.

To quote what the learned advocate for applicant has included in his submission. The doctrine of vicarious liability is alien to criminal justice, for no person can be convicted on legal fiction. i.e., no crime and no punishment without a law.” As we see it even in Coppen V. Moore, despite the express Intention of the statute, the master cannot be held liable if he shows that he acted innocently.

As for accused No. 1, Mohamed El Faki Abdalla, I decided to alter sentence to release on probation under Code of Criminal Procedure, s. 24, for one year with one security. I have already given my reasons in a previous revision about the application of Code of Criminal Procedure, S. 24. We have noticed that all these prosecutions of butchers under Prices and Charges Order, s. 9, are being made by the police in the manner of hide and seek. I have never come across a case in which the complainant was the purchaser for whose sake the Prices and Charges Order was promulgated. This indirectly indicates that there is no hardship.