Githigi and Another v Rex (Criminal Appeal No. 166 of 1950 (Case Stated)) [1950] EACA 72 (1 January 1950)

# APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J. and CONNELL, Ag. 1.

# (1) MWANGI s/o GITHIGI,

## (2) WILLIE MAINA s/o MWANGI, Appellants (Original Accused)

#### v.

### REX, Respondent (Original Prosecutor)

### Criminal Appeal No. 166 of 1950 (*Case Stated*)

# (Appeal from the decision of Resident Magistrate's Court at Nairobi-F. Roberts, Esq.)

Case stated $\div$ Non-appealable sentence—Revision not appropriate—Defence (Control of Prices) Regulations, 1945, Reg. 11 (1) (b)—Defence (Control of Charges for Services) Order, 1948 (Government Notice No. 914 of 1948)— Price Controller's Order No. 20 of 1949-Not published in Government Gazette—Paragraph 8, cancellation of all previous Price Orders—Interpretation Ordinance, 1948, section 12 (a)—Amendment, variation, recission or revocation "in the same manner"—Defence Regulations, 1939, Reg. 99 (1)— No statutory obligation on Price Controller to publish Orders in Government Gazette—Reg. 101 power to revoke or vary orders and rules exercisable "in like manner and subject to the like conditions" as the making of those rules and orders.

The two accused were respectively the proprietor of and assistant in an African Barber's Saloon in River Road, Nairobi. They were prosecuted under Defence (Control of Prices) Regulation 11 (1) for having charged the sum of Sh. 1 for cutting the hair of an African being an overcharge of 50 cents according to the Price Controller's Order No. 20, dated 10th May, 1948, purporting to vary the charges laid down in Defence (Control of Charges for Services) Order, 1948 (Government Notice No. 914 of 1948). Order No. 20 was not published in the Government Gazette. Press Controller's Order No. 1 of 1948, which also was not published in the Government Gazette, purported to cancel all previous Price Orders in respect of the Nairobi District. Accused were convicted and fined Sh. 100 or 10 weeks' imprisonment with hard labour in default. This not being an appealable sentence, accused applied in Revision.

*Held* $(22-5-50)$ —(i) That appeal by way of case stated is the appropriate remedy, application for revision not being entertained.

Chhagan Raja v. Gordhan Gopal, 17 K. L. R. Part I p. 69 followed.

(ii) That the Price Controller's Order No. 20 of 1948, purporting to vary Government Notice No. 914 of 1948, had not been published in the Government Gazette, and conse-Solid Fig. 11 of 1998, and not been made "in the same manner" as the latter Notice, in accordance with section 12 (a) Interpretation Ordinance, 1948, and was of no effect.

Falmouth Boat Construction Ltd. v. Howell (1950) 1. A. E. R. 538; Jackson Stansfield & Sons v. Butterworth (1948) 64, T. L. R. 481, referred.

Appeal allowed. Convictions quashed.

Cases referred to: Chhagan Raja v. Gordhan Gopal, 17 K. LR. Part I p. 69; Falmouth Boat Construction Ltd. v. Howell (1950) 1. A. E. R. 538; Jackson Stansfield & Sons v. Butterworth (1948) 64 T. L. R. 481.

# D. V. Kapila for the appellants. Stacey for the respondent.

JUDGMENT.—This is an appeal by way of case stated from a conviction in the Special Magistrate's Court. Nairobi, of overcharging in respect of a service. namely haircutting, contra to Regulation 11 (1) of the Defence (Control of Prices) Regulations, 1945. The two accused are respectively the proprietor of and assistant in an African Barber's Saloon. This conviction was entered against the two accused as long ago as August last, but as they were fined not more than Sh. 100 each they had no right of appeal. The matter came before this Court, however, on an application for revision but this application was not entertained because the Court, following the decision in Chhagan Raja v. Gordhan Gopal, 17 K. L. R., Part I, p. 69, held that the proper remedy in a case of this kind was by way of case stated. The matter therefore now comes before this Court again in that form.

The case stated, as remitted by the Magistrate who tried the case, raises a good many points, but the crucial one so far as the accused are concerned is: Did they in fact transgress a lawful order of the Price Controller when they charged a customer at their shop Sh. 1 for hair cut?

The matter goes back first to Government Notice No. 914 of 17th September. 1948, which was published in the Government Gazette. By this notification the Price Controller made an order which is cited as the Defence (Control of Charges for Services) Order, 1948. This Order, which bears every indication of having been drafted carefully by a legal draftsman, is purported to be made by the Controller in the exercise of the powers conferred upon him by paragraph (b) of Sub-regulation (1) of Regulation 4 of the Defence (Control of Prices) Regulations, 1945. By this Regulation the Controller is empowered to fix by Order a maximum charge that may be made by any person for any specified service. In this Order he proceeded to do so for the service which he described in the Schedule to the Order as "Hairdressing (Male and Female)". In the schedule other services are listed, and in the main body of the Order it is prescribed that in the case of a business established before 1st January, 1948, no higher charge can be lawfully made for any service scheduled than was a lawful charge in respect of the same service in 1947. Now it is conceded in the case before us that the accused were in business in 1947 and that if this Order, Government Notice No. 914 of 1948, still applies to them they have committed no offence in charging Sh. 1 for a haircut. It is also conceded that Government Notice No. 914 of 1948 never has been rescinded, varied or amended by the Price Controller by a notification in the Government Gazette. Whether the Order has ceased to be of full force and effect because of some other ungazetted order of the Price Controller is another matter which we will consider presently.

The next step in this involved affair is the Price Controller's Order dated 1st January, 1949, which is headed No. 1 of 1949. For some reason that we know not the Controller did not see fit to publish this Order in the Government Gazette. Compared with Government Notice No. 914 of 1948 the Order shows a sad falling off in grace. First of all the Controller purports to make the Order in the exercise of the powers conferred upon him generally by the Defence (Control of Prices) Regulations, 1945. He does not say under which of the 30 distinct and separate regulations therein contained he purports to act. That this is not a mere objection to form will become apparent in a moment. Secondly in paragraph 8 of the Order he made the following announcement: —

"8. That all previous Price Orders in respect of the Nairobi District are hereby cancelled.'

Attached to the Order is a schedule containing a list of Price Regulated Goods, and on a rough estimate the list contains about 1,500 different commodities. The Order is exclusively concerned with the fixing of maximum prices for goods; there is no mention of charges for services anywhere in the Order. Although he does not say so, clearly this Order was made under Regulation 4 (i) (a) of the Price Control Regulations and not under (4) (1) (b) which enables the Controller to fix a maximum charge for any specified service. Before leaving this Order we have to consider the effect of the loosely drafted paragraph 8, because this is one of the points which caused difficulty in the Court below. The Magistrate held that Government Notice No. 914 of 1948 must be considered to be a Price Order applicable to the Nairobi District. Therefore the effect of paragraph' 8 of Order No. 1 of 1949 was to cancel Government Notice No. 914 of 1948. This reasoning is sound enough but it does not appear that the Magistrate took into account the Provisions of section 12A of the Interpretation Ordinance, 1948 (Old section 9 of Cap. I, Laws of Kenya) an Ordinance which was applied to all Defence Regulations and subsidiary legislation made thereunder by Regulation 2 (4) of the Defence Regulations, 1939. This section reads as follows:-

"Section 12. Where an Ordinance confers power on any authority to make subsidiary legislation the following provisions shall, unless the contrary intention appears, have effect with reference to the making of such subsidiary legislation: —

(a) Subsidiary legislation may at any time be amended, varied, rescinded or revoked by the same authority and in the same manner by and in which it was made."

At first sight then it would seem that, as Government Notice No. 914 of 1948 has never been amended, varied, rescinded or revoked "in the same manner" that is to say by the publication of a Government notification in the Gazette, the Defence (Control of Charges for Services) Order, 1948, remains still in full force and effect despite paragraph 8 of the Controller's Order No. 1 of 1949. This was very definitely our view until Mr. Stacey, who has appeared for the Attorney General in these proceedings, brought to our notice a recent English decision in Falmouth Boat Construction, Ltd. v. Howell (1950), 1. A. E. L. R., p. 538. We are grateful to Mr. Stacey for this reference because most certainly there is a passage in the judgment of Denning, L. J. at p. 542 which suggests that an Order made by an authority authorized to make the Order (and subsequently publish it) under the General Defence Regulations could be revoked or varied without any formality or publicity, in fact even by an oral Order. However after a close study of all the judgments in the *Falmouth Boat case* and in the earlier case of Jackson Stansfield and Sons v. Butterworth (1948), 64 T. L. R. at p. 481, we have come to the conclusion that neither case is of assistance to us in considering the effect of the Kenya Interpretation Ordinance on Government Notice No. 914 of 1948. The real point for decision in both cases was whether the word "licence" used in certain Orders could include a mere oral licence or authorization. In the 1948 case the Court decided that it could not and that the licence must be a written one, and in the latter case, because the circumstances of the case were entirely different, that it could. In the *Falmouth Boat* case the Court was invited to say that a ship repairer had committed a criminal offence because certain repairs had been carried out on a ship on the oral permission of an Admiralty licensing officer although at the time no licence had been issued by the Admiralty as required by the principal Order. The Court<br>refused to say that what had been done by the ship repairer amounted to a contravention of law so as to entitle the person who had ordered the repairs to refuse to pay for them. In doing so it is clear that the Court acted on a sound principle, clearly set out in the following words towards the close of Denning, L. J.'s judgment:

"Whenever Government officers in their dealings with a subject, take on themselves to assume authority in a matter with which the subject is concerned, he is entitled to rely on their having the authority which they assume. He does not know, and cannot be expected to know, the limits of their authority and he ought not to suffer if they exceed it."

We think we have now said enough about the *Falmouth* case to show how widely different is the case now before us. Here the issue is, whether the Price Controller in view of the provisions of the Interpretation Ordinance, lawfully amended, varied, rescinded or revoked an order which he had had published in the Government Gazette by a subsequent order which he did not have so published. The issue has been put to us in these words by the Attorney General in the case stated:-

(1) Do the powers conferred upon the Price Controller by Regulation 4 (1) of the Defence (Control of Prices) Regulations, 1945, enable him to vary an order published in the Official Gazette by means of an order not so published, notwithstanding the provisions of paragraph $(a)$ of Section 12, Interpretation and General Clauses Ordinance, 1948?

Our answer to that is no, but in giving that answer we do not wish there to be any misunderstanding. Because of Regulation 99 (1) of Defence Regulations, 1939, there is no statutory obligation on the Price Controller to publish any of his Orders in the Government Gazette, all his duty is, is "to cause notice of the effect of such Order to be given as soon as may be in such manner as he thinks necessary for bringing it to the notice of all persons who in his opinion ought to have notice of the Order". He may or may not select the Government Gazette as a medium for the performance of that duty. If he does select the Government Gazette, however, then in our opinion he cannot amend, vary, rescind or revoke any Order so published without again using the same medium, namely, publication in the Government Gazette. As we have said already Regulation 2 (4) of the Defence Regulations, 1939, applies the Interpretation and General Clauses Ordinance generally to Defence Regulations and Regulation 101 of the same regulations confirms that the view we have stated is the correct one.

Regulation 101. "Any powers conferred by any of these Regulations to make any orders or rules shall be construed as including a power, exercisable in the like manner and subject to the like conditions, if any to revoke or vary • the order or rules."

We think the words "exercisable in the like manner" in lines two and three of this Regulation should be read in conjunction with the words "in such manner" used in line four of Regulation 99 (1). If they be so read there is no ambiguity as the former words then must cover the method of publication. So far then to there being any "contrary intention" manifest in the Regulations which would exclude the operation of paragraph $(a)$ of Section 12 of the Interpretation Ordinance the reverse is the case.

The effect then of our answer to the first of the questions put by the Attorney General is this. Paragraph 8 of the Price Controller's Order No. 1 of 1949 did not cancel Government Notice No. 914 of 1948 which remained in full force and effect.

We now come to Order 20 of 1949 dated 10th May, 1949, which was not published in the Government Gazette. This Order consisted of three parts. Part I varied certain of the prices for goods scheduled in Order 1 of 1949, Part II made certain deletions and Part III certain additions. Amongst the additions occurred this item: —

| "Barber charges, African:— | | | | | | | |----------------------------|-------------------------------|--------------------------------------------|--|----------|------|------| | Haircutting | | | | $\cdots$ | | 0 50 | | Shaving | $\cdots \cdots \cdots \cdots$ | the state of the state of the state of the | | | 0 30 | |

These charges to include any services in connexion therewith."

It should be noted that every other item in this Order either varies the price of a particular commodity or removes a commodity from price control, or adds to the category of goods subject to price control. In this one item only in respect of African barbers does the Price Controller make an Order affecting a charge

for a service. To say the least, it was not the happiest way of bringing this particular order to the notice of persons affected, namely. African Barbers, when it is borne in mind that Government Notice No. 914 of 1948 had never been repealed by notification in the Gazette and that the Order contained in that notification specifically purported to fix maximum prices for certain services of which haircutting was one. Be that as it may, on 20th June the appellants were charged with a breach of the Order, and if the Order of 10th May affecting them was a valid Order they have no defence and they have been properly convicted. If Government Notice No. 914 of 1948 is left out of consideration there can be no doubt that the Price Controller had power to make an order fixing a maximum charge for a service performed by an African barber. Mr. Kapila has argued strongly that he had no right to discriminate between barbers on racial grounds but in view of the wording used in *Regulation* 4 (1) (b) of the Defence (Control of Prices) Regulations, 1945, we cannot accept this argument. The words "fix a maximum charge that may be made by any person for any specified service" are wide enough in our opinion not only to enable the Controller to differentiate between sections of the hairdressing trade, if he so wishes, but between individual hairdressers.

This then is the position reached. On the date of the alleged offence the appellants under Government Notice No. 914 cf 1948 had committed no offence but they had transgressed the Order of the 10th May, 1949. Mr. Stacey has submitted that this Order being later in time is the one which the appellants by law were required to observe. This submission must prevail if the Price Controller's Order of 10th May, 1949, so far as it purported to fix a charge for a service was a valid one. The point has given us difficulty but after consideration we have come to the conclusion that it was not. It seems to us that the Order, although not purporting to vary Government Notice No. 914 of 1948 (which the Controller may have thought he had repealed) does in fact vary the prices which a section of the hairdressing trade in Nairobi may charge, and that therefore it can have no effect because it was not a variation made in the same manner in which the Order varied as made, namely, by notification in the Government Gazette. Our answer then to the second question put by the Attorney General in the case stated is also no. The Order of 10th May, 1949, did not vary the Schedule to the Defence (Control of Charges for Services) Order, 1948 (Government Notice No. 914 of 1948) so that the item "Hairdressing (Male and Female)" no longer applied to African barbers. It follows then that the two accused here committed no offence and that they were wrongly convicted. Their convictions are quashed and if they have paid their fines these will be remitted to them.

We wish to add this; if in this judgment we have made observations which might be considered critical of the methods adopted by the Price Control Department in the making and publication of their orders, it is not because we have failed to appreciate, as indeed we do, that the Controller must often be called upon to make orders quickly to meet fluctuating conditions without having at his elbow a legal adviser. Perhaps if may be of assistance therefore for us to state briefly the effect of our decision in this case. There is not in force at the moment any maximum charge applicable to African barbers for haircutting and shaving as such but they, like all other hairdressers and in fact all persons who perform any of the services set out in the Schedule to the Defence (Control of Charges for Services) Order, 1948 (Government Notice No. 914 of 1948), are subject to the restrictions set out in that Order. If the Price Controller in the light of conditions as they exist to-day thinks it desirable to amend, vary, rescind or revoke all or any of the provisions of that Order he can do so by a fresh Order, and that Order will become effective on publication by notice in the Government Gazette. Furthermore, nothing in this judgment of course in any way affects the validity of any Price Order made by the Controller by which he has fixed a maximum price for any commodity other than charges for services.