Municipal Board of Mombasa v Karaji (Criminal Appeal No. 279 of 1950) [1952] EACA 311 (1 January 1952)

## APPELLATE CRIMINAL

Before SIR HECTOR HEARNE, C. J. and BOURKE, J.

THE MUNICIPAL BOARD OF MOMBASA, Appellate (Original Prosecutor)

$\mathbf{v}$

RAM SINGH KARAJI, Respondent (Original Accused)

## Criminal Appeal No. 279 of 1950

(Appeal from the decision of the Resident Magistrate's Court at Mombasa, R. A. Campbell, Esq.)

Mombasa Municipality By-laws—Second-hand goods—Dump or Store.

The respondent was charged with contravening by-law 9 of the Mombasa Municipality (Dealers in Second-hand Goods) By-laws, 1948, in failing to comply with a notice requiring him to remove a store or dump of second-hand goods from a specified plot.

Held $(26-3-52)$ .—(1) That to dump goods would be to deposit them in a heap or pile so that they form an unshaped mass. No dump was proved to exist in the particular case.

(2) Goods constituted a "store" although they were not for sale but were second-<br>hand goods retained by the respondent for his own use.

Order of acquittal set aside and case remitted to the lower Court with a direction to proceed with the trial in accordance with law.

Case referred to: Fielding v. Morley Corporation, (1899) 1 Ch. 3.

Bryson for appellant (for Municipality).

O'Brien Kelly for respondent.

JUDGMENT.-This appeal arises by way of case stated by the subordinate Court of the First Class at the instance of the Municipal Board of Mombasa. The respondent was charged with a contravention of by-law 9 of the Mombasa Municipality (Dealers in Second-hand Goods) By-laws, 1948, in that he failed to comply with a notice requiring him to remove a store or dump of secondhand goods from a specified plot.

The case reveals that the respondent was a transporter in a large way of business who maintained about 15 lorries. He kept on the plot a number of old lorries in various stages of dismemberment from which from time to time he removed parts in order to fit them to the vehicles he had in use. He also kept on his plot about 100 tyres, which he fitted to his lorries as required, and a fairly large quantity of empty paint tins the contents of which he had used for painting his motor trucks. Upon his plot was a rough sort of workshop under an awning where parts from his broken-down vehicles and tyres were fitted to lorries in use. The finding is that the plot was being used as an open air garage for the carrying out of such work. The respondent never sold anything resting upon the plot. It was held that the lorry parts and tyres, though they were secondhand goods, did not constitute a store or dump of such goods within the meaning of the by-law in question and the respondent was acquitted. There is no specific reference in the case to the quantity of empty paint tins except in paragraph $(b)$ setting out the facts as found, nor were they referred to the course of the arguments before this Court. The ultimate finding of the lower Court on its application of the law was concerned with the "lorry parts and

tyres", and it is as to the validity of this finding, and in particular in relation to the broken-down vehicles, that argument proceeded upon the questions reserved for the opinion of this Court.

The two main aspects of the problem are, (1) whether this accumulation of second-hand goods can properly be said to constitute a dump or store and, (2) if so, whether it can be held that the respondent had established or maintained a dump or store within the meaning of the by-law.

The by-law in question reads as follows:-

"9. No person shall without the written permission of the Board establish or maintain stores or dumps of second-hand goods on any premises on the Island of Mombasa except within the area within which buildings of the warehouse class are permitted under the provisions of the Mombasa Town Planning Scheme, 1926, and variations thereof.

The owner or occupier of any premises on which any store or dump of second-hand goods has been established or maintained contrary to the provisions of this by-law shall within the time specified therein comply with any notice issued by the Board requiring him to remove such store or dump of second-hand goods."

There would seem to be no good reason for departing from the well-known rule of construction that the ordinary meaning of words must be applied to the subject-matter with regard to which they are used. On the ordinary meaning of the words, to dump goods would be to deposit them in a heap or pile so that they form an unshaped mass. Such a heap or pile would constitute a dump. There is no finding that the lorries or tyres were heaped or thrown in a pile and it is not disclosed as to how they were placed on the plot. All we know is that they were upon the plot and there is no finding as to the area of the plot. We are not prepared to hold that there was a dump of these second-hand goods. Was there a "store" of such goods? A store in the ordinary meaning is a stock laid up for drawing upon, a source from which supplies may be drawn. The facts are that the respondent kept the goods upon the plot in order that he might draw from them spare parts and tyres for his transport vehicles. They were a supply or stock from which from time to time he took goods as he needed them. In our opinion there was a store of second-hand goods upon the plot. Since that is so it would seem to follow logically that the respondent had established and was maintaining a store of such goods upon the plot. This consideration, however, brings us to the second aspect of the problem. The only reason given in the case for the finding by the Court below that the goods did not constitute a store or dump within the meaning of the by-law is that the plot was being used as an open air garage. Why that factor in itself should render the stock of goods laid up for supply any less a store of goods we fail to see. But it has been argued, and is not in dispute, that the learned Magistrate was largely led to this conclusion because of the finding that the respondent "had never sold anything on the plot". Accordingly the following question has been reserved and referred to in argument as the most important in the case, "Did the learned Magistrate err in law in holding that merely because the accused did not sell any of the second-hand goods, he was not infringing the said by-law?" The advocate for the respondent has referred to the other bylaws including the title and to section 77 of the Municipalities Ordinance (Cap. 136) under which the by-laws are made. There is no question arising as to whether by-law 9 is ultra vires that section as putting a restriction upon all persons and not merely upon those who trade or deal in second-hand goods; but it is argued that having regard to sub-section 71 of that section and the title of the by-laws and the import of other by-laws going to control trade in such

goods (although in by-law 12 it is to be noted that there is a reference to the storing or dealing in second-hand goods") by-law 9 is to be read as restricting persons from establishing or maintaining stores or dumps of second-hand goods for the purpose of effecting sales of goods from such stores or dumps. All we can say is that in our view the words of the by-law, which is not questioned as having been validly made, are clear and unambiguous. If it were intended to legislate solely in respect of stores or dumps of goods laid up or maintained for sale it is to be presumed that the legislating authority would have said so. It is true that the whole of the by-laws should be looked at to ascertain their object and that the title is an important part of the legislation, Fielding v. Morley Corporation, (1899) 1 Ch. 3; but here is a by-law that to our mind imposes a restriction in the clearest language and effect should be given to it on the plain and ordinary meaning of the words employed. We can discern no sufficient reason for construing it as if it read, "No person shall without the written permission of the Board establish or maintain stores or dumps of second-hand goods for sale on any premises ..." To anyone aware of the conditions at Mombasa it will be readily apparent that an open store or dump of goods can constitute a danger to the health of the inhabitants, and whether the goods are maintained in store or dump as a source of personal supply or for sale does not affect that aspect of the matter. Section 77 of the Ordinance is devised, inter alia, to empower subsidiary legislation as is "necessary or desirable for the maintenance of the health, safety and well being of the inhabitants". Part of the argument advanced for the respondent is that the by-laws must have been made in virtue of the special powers conferred under sub-section (71) of section 77, which enables by-laws to be made, "for regulating, supervising and licensing the trade, business or occupation of dealers in second-hand goods, including bottles, sacks, bones and tins". From that it is submitted that by-law 9 should be read to give effect to an intention that it should restrict only where stores or dumps of second-hand goods are established or maintained for the purpose of trading and dealing in such goods. But, we repeat, the validity of the by-law is not in question in these proceedings and since, in our opinion, its meaning is plain and straight-forward as disclosing an intention to control the setting up of stores and dumps of second-hand goods whether for sale or not, the submission, as it appears to us, really amounts to an invitation to this Court to legislate within what are said to be the specific powers under section 77 (71) and permit control only where a trade or business in the stored or dumped goods is being carried on.

In our judgment the subordinate Court mis-directed itself in construing the by-law and arrived at a wrong conclusion. We hold for the reasons given that on the facts the respondent did establish or maintain a store of second-hand goods on the plot within the meaning of by-law 9. The order of acquittal is set aside and the case is remitted to the lower Court with a direction to proceed with the trial in accordance with law.