Habib v Att.-Gen, 1957-60 ALR S.L. 24

HABIB v. ATTORNEY-GENERAL SuPREME CouRT (Bairamian, C.J.): September 24th, 1957 (Mag. App. No. 17 /57) [I] Agency-formation-common law right to employ agent-right to employ unlicensed agent to deal in diamonds abrogated by Alluvial Diamond Mining Ordinance, 1956, s.l8(3): The prohibition against dealing in diamonds by unlicensed persons in s.l8(3) of the Alluvial Diamond Mining Ordinance, 1956 is absolute and includes the un licensed servants or agents of licensed dealers; the common law right of a person to employ an agent to buy or sell goods on his behalf is expressly taken away by the section (page 31, lines 12-20; page 32, lines 10-12; page 32, lines 21-27).

[2] Contract-illegal contracts-agreement to commit unlawful act-no right of action based on felony: Where it comes to the attention of a court, either from the evidence of the parties or from an outside source, that the contract upon which an action for the recovery of possession of diamonds is based was entered into with a view to carrying into effect anything prohibited by law, the court is bound to take notice of such an objection and will not lend its aid; the claimant has no right of action and it is not necessary to decide whether he is guilty of an offence or whether the diamonds claimed are his property (page 32, line 40-page 33, line 9; page 33, lines l3-37; page 35, lines 12-16).

[3] Contract-illegal contracts-effect of illegality-since no right of action, court need not consider whether claimant guilty of offence or if goods claimed his property: See [2] above. [ 4] Natural Resources-diamonds-unlawful dealing-court will not enter tain action for recovery based on felony-unnecessary to consider whether claimant guilty of offence or if goods claimed his property: See [2] above.

[5] Natural Resources-diamonds-unlawful dealing-prohibition of deal ing by unlicensed persons includes agent of licensed dealer-common law rights of agency abrogated by Alluvial Diamond Mining Ordi nance, 1956, s.18(3): See [1] above.

[6] Statutes-interpretation-statute to be construed in conformity with common law unless contrary plainly intended: Statutes should be construed in conformity with the common law rather than against it, except where or so far as the statute plainly intended to alter the course of the common law (page 32, lines 14-17).

[7] Statutes-interpretation-general words-construction leaving existing policy of law unchanged to be adopted where possible: The general words of a statute are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched (page 34, lines 17-22).

I i

HABm v. ATT.-GEN., 1957-60 ALR S.L. 24 s.c. The appellant's servant was charged in a magistrate's court with unlawful possession of diamonds, contrary to s.61 of the Alluvial Diamond Mining Ordinance, 1956. The appellant, a licensed dealer, handed his licence and the diamonds to his brother-in-law Ajami, who was not licensed, and 5 sent him to Kenema to sell the diamonds. Ajami was caught and prosecuted. The appellant gave evidence for the defence and admitted giving the diamonds to Ajami. Ajami was convicted: the magistrate found that the appellant was the owner of the diamonds and ordered that they be returned to him. The Attorney-General 10 appealed against this order and the case was remitted to the magistrate's court for determination of the ownership of the diamonds. The magistrate, after taking fresh evidence, found that the appellant had contravened s.l2(8) of the Alluvial Diamond Mining Ordinance, 1956 in handing over his licence to Ajami; that he had failed to 15 comply with the terms of his licence and that he had aided and abetted Ajami in the commission of an offence against the Ordinance. He ordered that the diamonds be forfeited to Her Majesty under s.62. On appeal against this order it was argued for the appellant (a) that the only point in issue was whether he was the owner of the 20 diamonds; (b) that there was no provision in the Alluvial Diamond Mining Ordinance which made it an offence for a licensed master to send his servant or agent to sell diamonds; and (c) that in giving the diamonds to Ajami the appellant had no illegal intention. Cases referred to:

(1) Brown ]enkinson & Co. Ltd. v. Percy Dalton (London) Ltd., [1957] 2 Q.B. 621; [1957] 2 All E.R. 844.

(2) Callow v. Tillstone (1900), 83 LT. 411; 64 J.P. 823, distinguished.

(3) Holman v. ]ohnson (1775), 1 Cowp. 341; 98 E.R. 1120.

(4) Langton v. Hughes (1813), 1 M. & S. 592; 105 E.R. 222.

(5) In re Mahmoud, [1921] 2 K.B. 7.16; (1921), 125 L.T. 161, followed.

(6) Minet v. Leman (1855), 20 Beav. 269; 52 E.R. 606, dictum of Rornilly, 3S M.R. applied.

(7) R. v. Coney (1882), 8 Q.B.D. 534; 46 L.T. 307, distinguished.

(8) R. v. Morris (1867), L.R. 1 C.C.R. 90; 16 L.T. 636, dictum of Byles, J. applied.

(9) Simms v. Registrar of Probates, [1900] A.C. 323; (1900), 82 L.T. 433, distinguished.

Legislation construed: Minerals Ordinance (Laws of Sierra Leone, 1946, cap. 144), s.60: The relevant terms of this section are set out at page 26, lines 34-37. s.61: The relevant terms of this section are set out at page 26, lines 38-41. s.62: The relevant terms of this section are set out at page 27, lines 1-3; page 34, lines 4-5. Alluvial Diamond Mining Ordinance, 1956 (No. 2 of 1956), s.2: The relevant terms of this section are set out at page 26, lines 29-30; page 27, line 17. s.18(3): The relevant terms of this sub-section are set out at page 27, lines 14-16. s.21 : "A person shall be guilty of a contravention of this section if he is in possession of diamonds and he fails to prove that he is lawfully in possession of such diamonds .... " s.31(2): "Notwithstanding anything to the contrary contained therein, the Minerals Ordinance shall not apply to the prospecting, mining, dealing in, exporting, despatching and transporting of alluvial diamonds under this Ordinance." 20 C.B. Roger&-Wright for the appellant;

M.C. Marke, Ag. Sol.-Gen., and N.E. Browne-Marke, Crown Counsel, for the respondent. BAIRAMIAN, C.J.: This is an appeal against an order made by the magistrate sitting at Pujehun (Mr. W.S. Young) on May 31st, 1957, under s.62 of the Minerals Ordinance (cap. 144), that 1808 pieces of rough and uncut diamonds seized from one Abbess Ajami (who had been convicted of an offence under s.61) be forfeited to Her Majesty. It will be useful to note that "mineral" by definition in s.2 of the Ordinance includes diamonds and that ss. 60 and 67 of the Ordinance were applied to diamonds in their rough or uncut state by an order of the Governor in Council (the Minerals (Application of Sections 60-67) Order in Council) made under s.59. Section 60 of the Ordinance begins thus: "No person shall possess any mineral unless he is the lessee of a mining lease, or the holder of a mining right . . . or of a licence granted under s.64 or the duly authorised employee of such lessee or holder." Section 61 provides that : "Any person who, being found in possession of any mineral, does not prove to the satisfaction of the Court that he obtained such mineral lawfully, shall independently of any other liability be liable .... " Section 62 goes on to provide that when

HABIB v. ATT.-GEN., 1957-60 ALR S.L. 24 s.c. a person is convicted the mineral to which the offence relates "shall unless proved by some other person to be the property of that other person be forfeited to [Her] Majesty .... " In 1956 the Alluvial Diamond Mining Ordinance was passed to regulate the prospecting for, mining of, dealing in and exporting of alluvial diamonds. This Ordinance provides in s.31(2) that the Minerals Ordinance (cap. 144) shall no longer apply to the pros pecting, etc. of alluvial diamonds under the new Ordinance. This new Ordinance is full of detail; here it is sufficient to note that a licence may be granted to mine, to deal in or to export alluvial diamonds. A licensed miner may sell his diamonds to a licensed dealer or a licensed exporter; and a licensed dealer may buy from a licensed miner and sell to a licensed exporter. Section 18(3) provides : «No person shall deal in alluvial diamonds except under and in accordance with the terms of a prospecting right or of a licence granted under this Ordinance." Section 2 has a wide definition of «deal in"; it includes an "offer to sell or purchase." Section 24 makes a contravention of s.18 a felony. The appellant's licence, granted under the Ordinance, is in these

~~= w "Fee--£28. Alluvial Diamond Dealer's Licence D. Licence No. 312 is hereby granted to A.K. Habib of 8 Fenton Road, Bo, employed on his ow'n account, to buy alluvial diamonds from the holders of Alluvial Diamond Mining Licences and to sell such diamonds to the holders of Alluvial Diamond Exporter's 25 Licences. This licence expires on December 31st, 1957. This licence is not transferable. Dated this 13th day of ]anuarry, 1957." [The Words in italics are written in by hand.] SO A licensed dealer is expected to produce his licence when selling diamonds on demand by the purchaser: see s.19(3) of the Alluvial Diamond Mining Ordinance. I proceed to the facts of this case. Ajami was found in possession of diamonds on February 8th, 1957 and the diamonds were seized. 35 He was prosecuted under s.61 of the Minerals Ordinance (cap. 144). The criminal proceedings are in evidence; I quote a little of Ajami's testimony: "I know A.K. Ha bib [the present appellant]. I live with him. He is my brother-in-law. Mr. Habib has a licence to 40 buy and sell diamonds. I assist Mr. Habib in buying and

so S5

selling diamonds. . . . On February 6th, 1957 I went with Mr. Habib to sell diamonds to the Corporation. We were not offered the price we asked. . . . On February 7th Mr. Habib gave me the diamonds to go to Kenema while he went to Freetown. He gave me three packets (Exhibits BI-BS) to take to Kenema. I went to Kenema. I went to the Corporation. We did not agree on the price.,. From there Ajami went to Fairo, where he was caught. In cross examination he agreed that he had no licence of any kind and had no licence to assist the appellant in his business of dealing in diamonds : he said that he applied for a dealer's licence on January 16th, 1957 as he wanted himself to deal in diamonds. The appellant also gave evidence which confirmed that of Ajami. He stated that he had applied on January 16th, 1957 for four agenfs licences, one of which was for Ajami. In cross-examination the appellant agreed that he had not received the licences for which he had the deposit; that his wife was with him and that she had a dealer's licence. At the adjourned hearing he said that before leaving Bo for Freetown on February 7th he handed his licence and the diamonds to Ajami and (I quote)-"instructed him to go to the Diamond Corporation at Kenema to sell the diamonds if the price was satisfactory. The only authority I have to deal in diamonds is Exhibit J. I have no other licence." The magistrate (Mr. S.C. Betts) convicted Ajami under s.61 of the Minerals Ordinance (cap. 144). On the evidence in the criminal case alone he decided that the appellant was the owner of the diamonds and made an order that they be returned to him. The Attorney-General appealed against the order for the return of the diamonds to Habib and Boston, J. made the following order: "Under s.l8 of the Appeals from Magistrates Ordinance (cap. 14) I order that the case be remitted to the Magistrate,s Court at Pujehun for determination of the ownership of the 1,808 pieces of rough and uncut diamonds. The decision of the magistrate as to the ownership of the diamonds is reversed and the order set aside. The magistrate at Pujehun is to arrange the date of hearing." That was how Mr. Young at Pujehun came to take fresh evidence. [The learned Chief Justice then reviewed the evidence given by the appellant, who repeated what he had said in the criminal proceedings. He continued: ] In his decision Mr. Young pointed out that the appellant did not

HABIB v. ATT.-GEN., 1957-60 ALR S.L. 24 s.c. prove that he was one of those persons who could possess diamonds under s.60 of the Minerals Ordinance (cap. 144) and had no claim under that section. He then proceeded to consider the position under the Alluvial Diamond Mining Ordinance, 1956 and concluded that the appellant contravened s.12(8), which provides that an alluvial diamond dealer's licence shall not be transferable, and did not comply with the terms of his licence. The learned magistrate stated : "He the appellant [wilfully] and knowingly parted with the possession of these diamonds to a person whom he fully knew had no right to have custody of them. He therefore aided and abetted Ajami in the commission of an offence against the Ordinance." To this he added in para. (iv) of his summary: "Speaking in the language of the principles of equity, I have to say that he who applies for restoration of possession of diamonds must do so with clean hands. He must not be a party to the commission of an offence against the Ordinance either wilfully or negligently." Paragraph (v) goes on to say: "When Ajami was arrested, he declared the diamonds to be his property and did not then refer to Habib. His subse quent evidence that these diamonds belonged to Habib was a mere defence at his trial for the offence of unlawful possession of these diamonds." The decision winds up thus : "Taking the circumstances into consideration, I cannot order these diamonds to be restored to the applicant Habib. As there is no other applicant, I order that these 1,808 pieces of diamonds seized from Ajami be forfeited to Her Majesty." The ground of his decision seems to be the one he gave in para. ( iv) of his summary. For the appellant the argument in the present appeal was that the evidence was solely to the effect that the appellant was the owner who had sent Ajami to sell the diamonds to the Corporation, but there was no express finding that the appellant was the owner. On this point of ownership there was no counter-argument for the Attorney General. The debate was mainly on whether the appellant was entitled to have the diamonds back. It was conceded by learned counsel for the appellant that the appellant did not come within s.60 of the Minerals Ordinance (cap. 144) so there was no question of Ajami being an "authorised employee" within that section. Learned counsel argued that there

was no provision in the Alhwial Diamond Mining Ordinance, 1956 which made it an offence for a master to send a servant to sell diamonds; that in giving the diamonds to Ajami the appellant had no illegal intention; and that if Ajami was going to the Diamond 5 Corporation it would have been «lawfully." If Ajami's offence was unlawful possession, the word "aiding" could not in the circumstances apply to the appellant because their relationship was that of master and servant : that was part of the argument. On aiding and abetting, counsel cited R. v. Coney (7) 10 and Callow v. Tills-tone (2) to show that something more active than the mere handing over of the diamonds was required. He described the appellant's giving the diamonds to Ajami to sell to the Corporation as a bailment, and submitted that the only issue was whether the appellant was the owner of the diamonds. 15 I am indebted to Mr. M.C. Marke, the learned Acting Solicitor- General, for a clear and concise argument which was to the following effect : ex concessis the appellant must rely on the Alluvial Diamond Mining Ordinance, 1956, under which he holds a dealer's licence; but this Ordinance does not provide for employing an agent, although 20 it does provide for a manager for a licensed miner and an agent for a licensed exporter. The inference is that a licensed dealer's servant cannot deal in diamonds even on behalf of his master so the appellant contravened the Ordinance in handing the diamonds to Ajami and the court should not lend its aid. Mr. Marke cited s.18(3) of the 25 Ordinance (which prohibits an unlicensed person from dealing in alluvial diamonds) and relied on Holman v. ]ohnson (3); In re Mahmoud (5); and Brown ]enkinson & Go. Ltd. v. Percy Dalton (London) Ltd. (1) in support of the proposition that it was contrary to public policy to base a claim on an illegal act. 30 Mr. C.B. Rogers-Wright in reply argued that the maxim expressio unius est exclusio alterius did not apply to this case; that "agent" in the sections differed from servant; and that the interpretation of the Crown led to harshness and hardship, citing Simms v. Registrar of Probates (9). 35 I would begin by observing that the diamonds must, for the purposes of the appellant's claim, be alluvial. If they were not alluvial, the appellant who concedes that he does not come within s.60 of the Minerals Ordinance (cap. 144), would have been guilty of an offence against ss. 60 or 61 of that Ordinance in possessing 40 them and they would be liable to forfeiture under s.62; so he could not have claimed to be the owner. Consequently it must be part