Rex v Mohammed (Cr. Rev. Case No. 29/1937) [1937] EACA 193 (1 January 1937)

## **CRIMINAL REVISION**

BEFORE LUCIE-SMITH, AG. C. J. AND WEBB, J.

## **REX** (*Prosecutor*)

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## JAN MOHAMMED, Applicant (Original Accused)

## Cr. Rev. Case No. 29/1937

Rules—Ultra vires—Crop Production and Live Stock Ordinance, 1926 Native Produce Improvement and Inspection Rules, 1936, r. 12.

Held (7-7-37).—That r. 12 of the Native Produce Improvement and Inspection Rules, 1936, is ultra vires.

Trivedi for the applicant.

The rule under which the applicant was convicted was made under section 4 of Ordinance 3/1926, which gives the Governor in Council power to make Rules, "which shall be applicable to such area<br>... as may be named therein". But the Rules dealing with Inspection, are to be applied to any area which is specified by the Director of Agriculture. The rule is ultra vires—(he referred to Cr. App. (Tanganvika) No. 21/1936).

Phillips, Ag. Crown Counsel, for the Crown.

JUDGMENT (delivered by Webb, J.).—The applicant was convicted of an offence under Rule 12 (3) of the Native Produce Improvement and Inspection Rules, 1936, in that on 24-4-37 at Runyenje's he purchased maize which had not been inspected. The rule in question (so far as material) is as follows: $-$

"12 (1). The Director may, by notice in the Gazette, specify areas from which no produce specified in such notice shall be removed except after inspection at one of the places to be named in such notice...

(3) No produce shall be sold or purchased at or within three miles of any place of inspection specified in a notice under this rule until such produce has been inspected at such place".

The Crop Production and Live Stock Ordinance, 1926, under which the rule was made, consists of five sections only, of which the first three deal with the short title of the Ordinance, its application and the definitions, while section 5 provides the penalty for breaches of the rules; the sole remaining section provides:—

"The Governor in Council may from time to time make rules which shall be applicable to such area or areas as may be named therein for the following purposes:" and there follow a number of purposes including " $(g)$ the inspection of any crop or agricultural produce":

Without going further, it is plain, in our opinion, that this rule is ultra vires. The section under which it was made requires that the area to which the rules are to apply is to be "named therein" i.e. to be named by the Governor in Council-but by rule 11 the Governor in Council purports to delegate to the Director of Agriculture the power of specifying the area to which the rules relating to inspection are to apply, and this is repeated in section 12 (1), which we have quoted above. By contrast rule 4 properly prescribes the area to which the rules relating to Improvement apply. Section 13 of the Interpretation Ordinance (Cap. 1), while it gives to the Governor a certain power to delegate his authority, expressly denies him the right to delegate his rule-making power, and still less can it be suggested that, where rules are to made by the Governor in Council, there is any power of delegation.

The conviction' is quashed and it is ordered that the fine, if paid. be refunded to the applicant.