Adan v Rex (Criminal Appeal No. 133 of 1949) [1949] EACA 46 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

Before EDWARDS, C. J. (Uganda), SIR JOHN GRAY, C. J. (Zanzibar), and SINCLAIR, J. (Tanganyika)

HASSAN ADAN, Appellant (Original Accused)

$\mathbf{v}$

REX. Respondent (Original Prosecutor)

Criminal Appeal No. 133 of 1949

(Appeal from decision of H. M. High Court of Tanganyika— Sir Graham Paul, C. J.)

Somali Census Ordinance, 1948—Somali Census Order, 1948—whether *ultra vires*.

Somali Census Order, 1948 2 (1) states that "Somalis include Ishakias" and it was contended that the order was ultra vires the Census Ordinance, 1948, as Ishakias ethnographically and historically are not Somalis.

Held (19-10-49).—It was unnecessary for the Court to inquire whether Ishakias are or are not ethnographically or historically Somalis and the Order was not ultra vires.

Khamis bin Ahmed v. Ahmed bin Ahmed bin Ali bin Abdurehman and others, 1 E. A. C. A., L. R. 130 p. 133 referred.

Appeal dismissed.

Morrison for the Appellant.

Southworth, Crown Counsel $(T. T.)$ for the Respondent.

JUDGMENT (delivered by EDWARDS, C. J.)—This is an appeal from a judgment of the High Court of Tanganyika Territory in its appellate jurisdiction dismissing. an appeal from a judgment of the Shinyanga District Court whereby the appellant had been convicted of an offence contrary to section 16 (2) $(a)$ , Census Ordinance, 1948, namely, without lawful excuse neglecting to fill up a census form delivered to him under the Ordinance, and sentenced to pay a fine of Sh. 150 and in default. of payment to undergo two months' imprisonment with hard labour.

The only substantial ground of appeal is that the Somali Census Order, 1948, is *ultra vires* section 3, Census Ordinance, 1948. Section 3 (1) is in the following terms: "The Governor in Council may from time to time as he considers necessary, by order direct a census to be taken of the inhabitants of the Territory or any part thereof, or of any class of such inhabitants". The Somali Census-Order, 1948, para. 2 (1), is in the following terms: "A census of all Somalis shall be taken throughout the Territory". Para. 2 (3) is as follows: "In this paragraph. the word 'Somali' includes Ishakias". As we understand the appellant's argument it is that if the Governor in Council had wished to direct a census of Ishakiasas well as a census of Somalis to be taken he should have made two separate orders and not included "Ishakias" in an order which purported to direct a census of the part or class known as "Somalis". In other words, it is said that sub-paragraph 3 of para. 2 of the Order purports to classify Ishakias as Somalis-(which it is said, is wrong) and that, accordingly under the cloak of a mere definition, the Governor in Council has done something which he was not empowered to do. The contention of the appellant is that historically and ethnologically the Ishakia people are not Somalis. In our view, all that para. 2 sets out to do, and in fact does, is to require a census to be taken of Somalisand Ishakias, and it is unnecessary for the purpose of the Order to inquire or to decide whether Ishakias are or are not, historically or ethnologically, Somalis. Somalis are certainly a "part" of the inhabitants of the Territory and so are Ishakias. This being so, the Order is clearly within the powers given by section 3 (1) of the Ordinance. With regard to the contention that para. 2 (3) offends against article 19 of the Tanganyika (Legislative Council) Order in Council, 1926, all we need say is that that article refers to "*native*" "laws and customs", which term would not seem to include the customs of Ishakias. In this connexion we refer to the case of Khamis bin Ahmed v. Ahmed bin Ahmed bin Ali bin Abdurehman and others, 1 E. A. C. A. L. R. 130 at page 133.

At the hearing of the appeal before this Court it was not suggested that. apart from the legal arguments presented to us, the appellant had any lawful<br>excuse for neglecting to fill up the census form. He was therefore rightly convicted of an offence contrary to section 16 (2) $(a)$ of the Census Ordinance and we accordingly dismiss this appeal from the High Court of Tanganyika Territory.