Harji v Rex (Criminal Appeal No. 63 of 1941) [1940] EACA 59 (1 January 1940)

## APPELLATE CRIMINAL

### Before SIR JOSEPH SHERIDAN, C. J. and BARTLEY, J.

## SHAMJI HARJI, Appellant $\mathbf{v}$

# REX. Respondent Criminal Appeal No. 63 of 1941

Defence Regulations—Seiling goods at an excessive and unjustified price— Amending Regulation printed and published in the Official Gazette-In the publication which is signed "C. R. Lockhart for Chief Secretary" a recital that the amending regulation has been made by His Excellency the Governor-Question of sufficient proof-Sections 37 and 57 of Indian Evidence Act—Definition of "paper manufactures".

In this case the appellant was charged before the Resident Magistrate, Nairobi, with selling cigarette papers, being listed goods, at an excessive and unjustified price contra section 5 Price of Goods Regulations (G. N. 361/40) and section 94 Defence Regulations 1939. The appellant pleaded "not guilty". The actual sale was proved and was not disputed, nor was there any denial that the price was excessive and unjustified as proved by the Crown.

Counsel for the appellant based his defence to the charge on three grounds. (1) That cigarette papers could not be covered by the wording of the original regulation which used the wording "paper and cardboard" as this was too vague. (2) That the amendment which introduced the words "paper manufactures" for the first time was invalid, by reason of the fact that the Government Notice which published it did not purport to be signed by His Excellency the Governor, who alone had power to make such an amendment by Government Notice. (3) That in any event cigarette papers were not covered even by the new words "paper manufactures"

The learned magistrate found for the appellant on (1) but against him on (2) and (3) and accordingly convicted him of the offence charged and sentenced him to a fine of Sh. 350. His judgment was as follows: —

"The accused in this case is charged with selling listed goods at an excessive price—the alleged sale is a sale of cigarette papers and the overcharge complained of is Sh. $5/20$ .

The Crown proved the sale, and although some point is sought to be made by the Defendant that he was not actually present at the time of the sale it is not disputed that the sale was at any rate made from his shop by one of his clerks, and that is sufficient to render the Defendant himself liable.

The defendant's counsel raises three points as to why this prosecution should fail, however: (1) He first states that the original regulation section under which the cigarette papers the subject of this case are sought to be covered must not be held by this court to include cigarette papers—the wording used is so vague, and it must be interpreted in favour of the accused if there is any doubt or vagueness in it. The original wording says merely 'paper and cardboard' and Mr. Trivedi argues and argues with force that this may be intended to include raw material, but must not be taken to cover all goods manufactured out of paper or cardboard—if it intended that it would have stated it and in any event the number of articles would be legion ranging from playing cards to paper bags and Christmas crackers. I agree with. his contention and hold that cigarette papers are not covered by the regulation as it originally stood.

(2) Mr. Trivedi attacks the amendment to the original regulation on the grounds that it is invalid. He has cited many authorities to me showing that only His Excellency the Governor can make such an amendment, and to that extent I agree with him. He goes further, however, and says that there is no acceptable proof before this Court that the Governor did in fact make the amending regulation on which the prosecution now have to rely.

I consider Mr. Trivedi's point to have been exceedingly well made and ably argued, but nevertheless I am not persuaded by it. The amendment appeared in the Official Gazette as Government Notice No. 847/40 dated 17th September, 1940, and it recited how the First Schedule was thereby amended "by Command of His Excellency the Governor" and was signed by C. R. Lockhart for Chief Secretary.

The pith of Mr. Trivedi's argument is that the Gazette only satisfies the Court that Mr. Lockhart did sign this notice on behalf of the Chief Secretary and that therefore the Court need not look at the original document to satisfy itself on this point. He says it goes no further and that Mr. Lockhart has merely put his signature to a piece of hearsay evidence and that it is evidence that has not been subject to a cross-examination and is therefore open to the chief of all the objections to hearsay on that account. He submits that the Court ought not to accept as law the mere statement by Mr. Lockhart that His Excellency the Governor has made a regulation and that for the Government Notice to be of any value it should be signed by His Excellency himself. At first sight this might appear to be sound argument, but unfortunately for Mr. Trivedi's client it is upset in my opinion by that important rule of evidence 'Omnia praesumuntur rite esse et solennitur acta donec probetur in

• contrarium' and there are cases on the point referred to at the foot of page 611 Brooms Legal Maxims, ninth edition, by W. J. Byrne, which I will not set cut here. It certainly has not been 'probetur in contrarium' in the present case, and for that reason in view of this rule of evidence I am going to find that the amending regulation is perfectly sound in the absence of any proof to the contrary. I am fortified in this view by an interesting decision by the Court of Appeal for Eastern Africa given at Dar es Salaam last year-Criminal Appeal No. 74 of 1940, Rex v. Hemedi bin Kambenga-where it was held, inter alia, by a majority of the Bench (ii) That a notice in point was not, as it purported to be, the order investing a certain magistrate with extended jurisdiction, but was merely the signification or publication of an order of the Governor which had been previously made. The same may also be said of Government Notice No. 847 of 1940 of this Colony and Protec:orate.

(3) Mr. Trivedi's final point is that even if this Court finds that the amendment is law, the additional words 'paper manufactures' do not cover the articles sold in this case, and that there has never in any event been any evidence given to show that these cigarette papers are made of paper and he contends that the Court must not take judicial notice of their substanceparticularly in view of the suggestion that they are made from rice.

I have considered these arguments very carefully and find nothing of any substance in them. The very word used to describe the articles is 'cigarette parers' and all the witnesses on both sides have referred to them as such. There is no evidence to the effect that they are made of rice, although Chief Inspector Griffiths did admit in cross-examination that they might be made of rice—he followed this up by saying that rice paper was quite common.

Moreover one can carry this argument that the Court cannot take judicial notice of things too far in my view. The exhibit in front of me certainly is paper—whether it is rice paper or another kind of paper I can't say, but rightly or wrongly I am prepared to hold that it is paper quite apart from its name and its description by all the witnesses in the case. I also hold that it is covered by the amending words 'paper manufactures' and is therefore 'listed goods'.

For the above reasons I consider the case against Mr. Trivedi's client proved and I find him guilty of the offence as charged and register a conviction accordingly.

# (sd.) MERVYN J. E. MORGAN,

Resident Magistrate, Nairobi, 15-2-41."

From this conviction the appellant appealed.

Held (22-4-41).—(1) Any suggestion that the regulations were made by a Government Notice merited no consideration. The notice was the means employed by Government to inform the public that the Governor had exercised the powers conferred upon him.

(2) Under section 37 of the Indian Evidence Act a notification by Government of any fact in the Official Gazette is relevant and admissible evidence as to the existence of that fact.

(3) By section 57 of the Indian Evidence Act the court must take judicial notice of all laws and rules having the force of law in Kenya and that included the amending regulation in question.

(4) By reason of the above (1), (2) and (3) supra the amending regulation was valid and in force and created a new and more strictly defined class of listed goods to wit 'paper manufacturing".

(5) The words 'paper manufactures' must be held to cover cigarette papers for the reasons given.

The appeal was dismissed.

#### Trivedi for the Appellant.

## Spurling, Crown Counsel, for the Crown.

JUDGMENT.—There are two questions for decision in this appeal, the first of which is whether the Defence Regulations, 1939, appearing in the Subsidiary Legislation for 1940 (Vol. XIX) under Government Notice 847 were made by His Excellency the Governor. The notice recites that the Governor has made them and after setting out the Regulations, concludes with the words "By Command of His Excellency, the Governor. C. R. Lockhart, for Chief Secretary". C. R. Lockhart is the Financial Secretary of the Colony and Protectorate and besides has been gazetted Chairman of the Supply Board; of this the Court takes judicial notice. The Regulations are printed and published in the Official Gazette which is published weekly "Under the Authority of His Excellency the Governor of the Colony and Protectorate of Kenya". Section 57 of the Indian Evidence Act provides that the Court shall take judicial notice of all laws or rules having the force of law in Kenya and that we feel ourselves bound to do in the case of the Regulations in question. Section 37 of the Indian Evidence Act provides that when the Court has to form an opinion as to the existence of a fact of a public nature, any statement of it in a notification of the Government appearing in the Official Gazette is a relevant fact. The Official Gazette is the appropriate book or document of reference which enables us to take judicial notice of the Regulations as part of the law of the land. Any suggestion that the Regulations were made by a Government Notice merits no consideration. The notice was the means employed by Government to inform the public that the Governor had exercised the powers conferred on h<sup>-</sup>m.

The second point raised by counsel for the appellant was that cigarette papers did not come within any term 'paper manufactures". Such a contention is contrary to common sense and the passage in Nol. 20 of the Encyclopedia Britannica, p. 727, under the heading "Paper Manufacture", is apposite. It reads: "The various uses to which paper is put in the present day are multitudinous, but the main classes may be grouped into four" and the fourth is given as "tissue and cigarette papers". We also agree with the learned magistrate's reasoning and finding on this point.

The appeal is dismissed.