(CRIMINAL REVISION)

SUDAN GOVERNMENT v. NUR EDDIN ABDEL RAHMAN SAAD

AC-CR-REV-447-1969

Principles

  Prices and Charges—"Demand"—Prices and Charges Order, s. 9—Includes actual sale as well as offer for sale—Demand of a rice may be by any means of communication; by writing and by word of mouth

The word "demand" under the Prices and Charges Order, s. 9, is intended to include actual sales as well as offer for the sale. The demand of a price may be made by any means of communication; by writing as well as by mouth. There fore, the exhibition of a price on the goods on a label means an offer for the sale by such prices written on the label.

Advocate: Ahmed Kamil for Blue Nile Province

Attorney for the prosecutor

Judgment

Osman El Tayeb C.J. January 15, 1970 : —The facts of the case are not disputed, they are as follows: Accused is a merchant of Wad Medani. The prices officer found in accused’s shop a shirt, the label on it showed its price as £S.3.450m/ms. This price was checked and it was found to be in excess of the maximum prescribed prices by about .191m/ms. The learned magistrate convicted him for contravening the Prices and Charges Order, s. 9, and sentenced him under the Residual Control Act (Amendment) 1969, s. 8 (2) to imprisonment for one year and a fine of £S.20.000m/ms. and made the consequential order of forfeiture of his trading licence.

Accused appealed to the Province Judge, who cancelled the conviction and ordered that he be set at liberty. The learned Province Judge made his judgment on two points:

1. That by merely exhibiting the price on the shirt, no sale had taken place and also no demand of that price had taken place, and there fore no contravention of section 9, had been committed.

2. That the price exhibited was calculated by accused on the misunderstanding that he as retailer was entitled to 15 per cent, profits, as this was written on the invoice on the goods that was sent to him by the wholesaler. And so he acted bona fide.

The Blue Nile Province Attorney made this application for calling for the proceedings under Code of Criminal Procedure, s. 257. He submitted that the learned Province Judge was wrong with respect to the two points. I have to agree with him. The second point is not worthy of argument, because if it was true that accused put that price bona fide on the misunderstanding caused to him by the wholesaler, it would not save him from the conviction, but it might be taken in consideration for mitigation of the sentence.

As to the first point, the relevant part of section 9 reads as follows:

“No seller of any goods whatsoever shall demand a price higher than that which may have been fixed, authorized or notified under these orders."

The word with which we are concerned in this case is "demand " its meaning is wider than actual selling, or what the seller utters in bar gaining with a prospective purchaser, or the exhibition of the price on a label on the goods. The exhibition of the price is required by law, under section 14 of the Order, and the contravention of this rule is punishable under the Act. The prices required to be exhibited or marked on the goods are the published, prescribed or authorized maximum prices for the sale of the goods. The importance of it is to make it definitely clear to the public that those prices are the lawful prices at which those goods are saleable, or the prices that are demanded for the sale of the goods. The demand of a certain price may be by any means of communication; by writing as well as by word of mouth.

This part of section 9 is the only provision in the Order which deals with sales for prices higher than the lawful prices, and it does not include the word “sale” or “sell.” Its language is “No seller . . shall demand “; in this context “demand” is intended to include actual sale as well as offer for sale. I conclude by deciding that the exhibition of a price on any goods, when it is higher than the price which is fixed, authorized or notified under the provisions of the Prices and Charges Order, is a punishable contravention. To avoid misunderstanding, I have to add that the contravention of section 14, is the failure to exhibit a price, and not the exhibiting of an unlawful price.

The contravention of the provisions of this Order is punishable under the Residual Control Act 1966. It has to be made clear that this Act contains different provisions distinguishing between sale and demand, making each one of them an offence different from the other. Section 8 (i) (b) contains the following: “. . . and in the case of selling at a price above the fixed maximum shall be punished with imprisonment for a term which shall not be less than one year nor more than seven years, and shall also be liable to fine . . .“ The same section made the forfeiture of the trader’s licence, on conviction, mandatory. Subsection (2) of the same section runs as follows:

“Any person who contravenes the provisions of any other order made under section 4 or any other made thereunder, shall be punished with imprisonment for a term which may extend to one year or fine or both."

By section 10 the court, upon conviction under the above quoted subsection, may cancel or endorse the trader’s licence of the accused. No mandatory forfeiture of the trader’s licence.

As I stated above, demanding includes selling, and selling (as is mentioned in section 8 (1) (b)) when it is complete by the passing of the goods and receiving the price becomes an aggravated offence for which the punishment is not less than imprisonment for one year and in addition an obligatory forfeiture of the trader’s licence of the accused. While demanding, which is an act short of selling, by exhibition of a price or by offering or asking for a price above the lawful price, is a whittled down offence. The punishment provided for it (section 8 (2)) may extend to imprisonment for six months or fine or both. The cancellation of the trader’s licence is not obligatory, except in case of repeated convictions.

In this case the charge sheet must show the offence to be contravention of the Prices and charges Order, s. 9, an offence punishable under the Residual Control Act 1966, as amended in 1969, S. 8 (2)

I hereby cancel the order of the Province Judge, and also the conviction and sentence, and I send back the case for revision of the finding and sentence.