Rex v Hughes (Cr.App. 1/1929.) [1929] EACA 145 (1 January 1929)

## APPELLATE CRIMINAL.

Before SHERIDAN, J. and THOMAS, J.

## REX

(Complainant) $\boldsymbol{v}$ . W. H. HUGHES $(Acaused).$ Cr. App. 1/1929.

- The Resident Native Labourers Ordinance, 1925, section 9production of registers of resident native labourers and their cattle. - $Held:$ —That Section 9 does not definitely and legally require an occupier to produce his register of natives on his farm upon demand by an authorized person so that a refusal to produce would be an offence punishable under Section 17.

Davis, Crown Counsel, for Crown.

SHERIDAN, J.-In connexion with a case stated arising out of a prosecution resulting in an acquittal under the Resident Native Labourers Ordinance the following questions have been submitted for the decision of the Court:—

(1) Does section 9 of Ordinance No. 5 of 1925 definitely and legally require an occupier to produce his squatter register upon demand by an authorized person?

(2) Does section 9 create any offence punishable under section 17 of the same Ordinance, out of a refusal to comply with such a demand?

(3) Is the register properly kept at the place of work rather than at the place of residence of the squatters in cases where natives live on one farm and work on another some distance $away?$

In my opinion the answer to the first question is in the negative. Where under the Ordinance the legislature provides for the production of a document under a penalty it is careful to state its meaning in clear and unequivocal terms. For instance section 6 of the Ordinance which relates to the production of contracts reads as follows:-

"6. Any Magistrate, or any person duly authorized in writing in that behalf by a Magistrate or any police officer or Justice of the Peace, may demand from any occupier the production of any contract entered into under the provisions of section 4 hereof, and such occupier shall forthwith produce such contract."

Section 9 on the other hand fails to state that an occupier on demand by a Magistrate, or any person duly authorized in writing by a Magistrate, shall be bound to produce his register. It may be that the legislature never conceived that a person would be so foolish or obstructive as to refuse. Whatever may be the reason for the omission of words expressly creating an obligation on the part of the occupier, to supply those words would, in my opinion, amount to our legislating. The marginal note to section 9 reading "Registers to be produced" is of course no part of the section; it purports to enlarge the provisions of the section and to that extent is to be disregarded. Where a failure to perform a particular act entails a penalty of $£50$ or two months imprisonment or both, the obligation to perform such act should be enacted in clear and unequivocal language.

From the answer to the first question it necessarily follows that the answer to the second question must be in the negative.

The answer to the third question, in my opinion, is in the affirmative, and in saying so I do not wish it to be understood that the Ordinance provides for the keeping of the register at a particular place. Provided that it be kept at such a place as will allow of its being written up as required by the Rules under the Ordinance, there is, in my oipnion, a sufficient compliance with the law.

THOMAS, J.—This is a case stated by the Magistrate at Nakuru. The facts shortly are that a Labour Inspector accompanied by a Justice of the Peace entered upon the farm of one H and demanded him to produce his register of persons residing This H refused to do. In consequence proceedings on the farm. were taken and the accused was charged under section 9 of Ordinance 5 of 1925 with failing to produce his squatters register when called upon to do so by the Labour Inspector.

At the time the accused gave no reasons for his refusal to produce his squatters register, but at the trial he stated that his register was at Nanyuki some fifty miles away where he and his squatters had been working for the past twelve months.

The Magistrate acquitted the accused but has stated this case and submitted the following three questions for the opinion of the Court.

Does section 9 of Ordinance 5 of 1925 definitely and $1. \quad$ legally require an occupier to produce his squatters register upon demand by an authorized person?

2. Does section 9 create any offence, punishable under section 17 of the same Ordinance, out of a refusal to comply with such a demand?

Is the register properly kept at the place of work rather 3. than at the place of residence of the squatters in cases where natives live on one farm and work at another some distance away?

Before considering these questions it would be as well to look at the section itself which is as follows:-

"" Where there is reason to believe that natives are residing on a farm in contravention of the provisions of this Ordinance, any Magistrate or any person duly authorized in writing by a Magistrate may enter upon such farm and may demand from any occupier the production of any register which is required to be kept under the provisions of this Ordinance and may take all reasonable and proper steps to satisfy himself as to the correctness of any particulars entered therein, and may demand from such occupier an explanation of any apparent discrepancies therein. Any such occupier who shall knowingly make a false entry in any register or who shall refuse to furnish any explanation shall be guilty of an offence."

The procedure provided by the section appears to require in the first instance an information or complaint to a Magistrate (not a Justice of the Peace see Cap. 7 and Cap. 21) followed by summons to produce with an authority to demand.

Such procedure being properly observed obedience to the Magistrate's order could be enforced under Cap. 7, sections 77 and 79.

The section does not in my opinion provide for any ordinary inspection but an investigation upon some evidence that the Ordinance is in the belief of some person being contravened.

The procedure which I have set out above, and which to my mind is the correct one, does not appear to have been followed in this case in any way. I can find no evidence of any information or complaint; no summons to produce; no authority in writing. If the Labour Inspector was in fact authorized under Ordinance 5 of 1925 I should have expected formal evidence to that effect to have been given. The Labour Inspector may be authorized under Cap. 139, section 67, but that Ordinance is distinct from Ordinance 5 of 1925. (See Thathi wa Mbate v. Crown, 9, E. A. L. R., page 2).

Section 9 does not provide for any special penalty for nonproduction, and in view of the powers of a Magistrate to compel the production of a document in any case before him no special penalty would be necessary. If the view I have taken be correct then the section is complete and no amendment is necessary.

The Supreme Court is empowered in cases of ambiguity or obscurity to interpret an Ordinance but is not allowed to legislate. In any interpretation the liberty of the subject must be respected and this is the more necessary where a doubt exists. Where the legislature has failed to explain itself or has remained silent the Court cannot go beyond the usual canons of interpretation. Where an omission has taken place the Court is entitled to-

regard that omission as intentional, see Mullins v. Vollons, 1874. L. R., 9 Q. B., 292; Union Bank of London v. Ingram, 1882, $20$ Ch., D., $463$ .

It is noticeable that in section 6 the words " and such occupier shall forthwith produce such contract " are inserted. It can hardly be suggested that the omission of such language in section 9 was due to a mere inadvertence. The case of $Reg$ . v. Chantrell, 10, Q. B. D. has been cited to show that where a power has been given a corresponding duty is entailed. That was not a penal clause. If the Court inserted words to the effect that the occupier should produce the register then for non-compliance a penalty of fifty pounds or two months imprisonment could be inflicted under section 17. My answers to the questions put by the Magistrate are therefore as follows: -

Section 9 of Ordinance 5 of 1925 does not definitely and $1. \quad$ legally require an occupier to produce his register of natives on his farm upon demand by an authorized person so that a refusal to produce would be an offence punishable under section 17; but it does empower a Magistrate to make an order the non-compliance with which may be dealt with by the Magistrate under his ordinary powers to require the production of a document provided that the proper procedure has been followed.

$2.$ No direct offence is created punishable under section 17.

It would seem desirable that the register should be kept $3^{\cdot}_{\cdot}$ at the farm where the natives are resident. Although some of the labourers might be absent on work at a distance, wives, families and stock coming within the Ordinance might remain on the farm. The register relates to residence in the first instance rather than to employment which is referred to in the Rules. The place of demand is on the farm and not at the place of employment (section 9). But in view of Rule 3 of the Rules made under the Ordinance the balance of convenience might necessitate the register being kept where the natives were actually employed.