Rex v Naser (Criminal Appeal No. 198 of 1950) [1951] EACA 143 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Graham Paul, C. J. (Tanganyika), Sir David Edwards, C. J. (Uganda), and LOCKHART-SMITH, J. of A.

REX, Appellant (Original Prosecutor)

$\boldsymbol{v}$ .

HUSSEIN NASER, Respondent (Original Accused)

Criminal Appeal No. 198 of 1950

(Appeal from decision of H. M. Supreme Court of Kenya—Sir Barclay Nihill, C. J., and Modera, J.)

Diseases of Animals Ordinance (Cap. 213)—Whether breach of rules an offence— Section 15 Interpretation and General Clauses Ordinance.

The respondent was convicted in the Magistrate's Court of moving cattle and goats without a permit contrary to section $21$ (1) and (2) of the Diseases of Animals Rules, 1931. He appealed to the Supreme Court of Kenya and succeeded on the ground that no offence had been committed since the Diseases of Animals Ordinance (Cap. 213) (from which the rules were derived) lacked an omnibus section declaring that any contravention of the provisions of the Ordinance is an offence against the Ordinance. From this decision the Crown appealed.

Held (25-1-51).—That by reason of section 15 of the Interpretation and General Clauses<br>Ordinance penalties could be imposed under the rules notwithstanding the lack of an omnibus clause in the Ordinance and that this was not inconsistent with the provisions of the Ordinance. The appeal would therefore be allowed.

Cases referred to: John Knight v. Tabernacle Permanent Building Society, 60 L. J. p. 633; Willingale v. Norris (1909) 1 K. B. p. 57.

Hobson, Solicitor General, Kenya, for the appellant

Modi, for the respondent.

JUDGMENT (delivered by SIR GRAHAM PAUL (Tanganyika)).—The respondent was charged in the Court of the First Class Magistrate at Garissa with "moving" cattle and goats from a native area without permit authorizing such movement, contra section 21 (1) and (2) of the Diseases of Animals Rules, 1931". He was found guilty as charged and sentenced to a fine of Sh. 1,000 or in default six months' imprisonment with hard labour.

From his conviction and sentence the respondent appealed to the Supreme Court of Kenya. His Memorandum of Appeal to that Court set out a number of grounds of fact and law. At the hearing of the appeal the Supreme Court decided "by way of preliminary" to hear argument upon the first point taken in that Court namely that the conviction was bad in law, the offence charged never having been created by statute. The Supreme Court upheld the respondent on that point without going into any other points in the case and quashed the conviction and set aside the sentence.

In this appeal we are concerned only with the point on which the Supreme Court decided to allow the appeal. From that decision the Crown has appealed to this Court and we have had interesting argument on a point which is undoubtedly of great general importance as it might affect other Ordinances and the rules and regulations made under them. The practical importance of the point is not now so great so far as the Animal Diseases Rules are concerned because of the amendment made in the law by Ordinance 51 of 1950, which was enacted to prevent the general application by Magistrates of the law about these rules as laid down in the Supreme Court judgment now before us.

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In the course of the hearing in this Court it became clear that the case of each party came to rest mainly on the Interpretation and General Clauses Ordinance (Cap. 1) section 15. The Crown case is based on sub-paragraph $(b)$ of that section and the respondent's case on sub-paragraph $(c)$ .

These material sub-paragraphs are in the following terms: —

- $(15. (b)$ there may be annexed to the breach of any subsidiary legislation such penalty not exceeding two thousand shillings or such term of imprisonment not exceeding two months, or both, as the authority making the subsidiary legislation may think fit, subject to disallowance by His Majestv: - (c) no subsidiary legislation shall be inconsistent with the provisions of any Ordinance:".

The contention for the respondent which was upheld by the Supreme Court is that $(c)$ prevents (b) from legalizing rules 21 and 67 of the rules in question. The question for this Court therefore is whether the terms of rules 21 and 67 are "inconsistent with the Ordinance".

The Supreme Court has on this point in its judgment held as follows: -

"We find ourselves for the reasons stated and the authorities to which we have already drawn attention unable to hold that rules can create an offence where the statute or Ordinance is silent on the subject."

We take that to mean that the Supreme Court takes the view that it is in the words of sub-paragraph $(c)$ "inconsistent with the provisions of the Ordinance" for the rule-making authority to make a breach of a rule punishable because there is no express provision *in the Ordinance* enabling the rule-making authority to do so.

In our opinion that view ignores the effect of sub-paragraph $(b)$ of section 15 of the Interpretation and General Clauses Ordinance which in our view manifestly has the effect of giving power to Governor in Council to "annex to the breach of any subsidiary legislation such penalty not exceeding Sh. 2,000 or such term of imprisonment not exceeding two months or both as the authority making that subsidiary legislation may think fit subject to disallowance by His Majesty". If such a provision had been expressed in the Ordinance clearly there could have been no question as to the power of the Governor in Council to annex a penalty to the breach of a rule. It is well known that one of the objects of an Interpretation Ordinance is to simplify and shorten legislative enactments. Once the Animal Diseases (Cap. 213) Ordinance gave power to the Governor in Council to make rules the Interpretation and General Clauses Ordinance in our view gave power to the Governor in Council to annex to the breach of any such rule the penalty specified in section 15 $(b)$ .

It is true that there is nothing in the Animal Diseases Ordinance dealing specifically with the particular rules in question in this case. There could not be, for at the date of the enactment of the Ordinance there were no such rules in existence. There was obviously nothing inconsistent with the Ordinance in rule 21 (1), (2) and (3). That part of the rules is clearly and expressly within section 7 (5) of the Animal Diseases Ordinance. There can be no doubt that the making of this rule 21.(1), (2) and (3) was definitely by the Ordinance put in the power of the Governor in Council.

The rule having been properly made under the Ordinance there is no ground for saying that this particular subsidiary legislation was "inconsistent" with the Ordinance. That being so it would certainly be inconsistent with section 15 $(b)$ . of the Interpretation Ordinance to hold that the Governor in Gouncil could not annex a prescribed penalty to the breach of this properly enacted subsidiary legislation.

The judgment of the Supreme Court on this point appears to us to be due to a misunderstanding as to the meaning of "inconsistent". If the Ordinance had contained a section to some such effect as: "Notwithstanding the terms of section 15 (b) of the Interpretation Ordinance the Governor in Council shall not have power to annex to the breach of any rule made under section 7 a penalty as provided by section 15 (b) of the Interpretation Ordinance", then of course the enactment by the Governor in Council of the penalty on breach of a rule would have been "inconsistent with the provisions of the Ordinance". It seems to us a misuse of the English language to say that a document dealing with a specific matter can 'be "inconsistent" with another document which does not tleal at all with the specific matter.

Apart from the *a<sub>i</sub>priori* reasoning about the question of "inconsistency" there is also high authority which may be usefully quoted. In the case of John Knight v. The Tabernacle Permanent Building Society (60 L. J. 633), Fry. L. J., in dealing with the question whether a provision in one Act was "inconsistent" with a provision in another Act said (at page $635/6$ ): -

"We have therefore to consider what is the meaning of the words 'inconsistent with the Act regulating the arbitration'. Section 19 clearly creates an obligation on the part of the arbitrator to state a case when so directed by the Court or a Judge; and in one sense, no doubt, the existence of an obligation to state a case is inconsistent with the absence of such an obligation. But that is not, in my opinion, the meaning of the inconsistency referred to in section 24. There must, I think, be an inconsistency in the sense that the obligation to state a special case would be so at variance with the machinery and procedure indicated by the previous Act, that if that obligation were added, the machinery of the previous Act would not work."

With respect we agree with the learned Lord Justice, and by that test there is no inconsistency here.

The authorities quoted by the Supreme Court may be referred to. The first authority was a passage from volume IX, page 135, of the Laws of England (Hailsham edition) as follows: --

"An indictment for a statutory offence must contain a reference to the section creating the offence."

This was not an indictment but a charge in a subordinate Court and in such cases, although the English law and our law may be the same, it is in our view better to look at our own legislation rather than to English law as to what a charge should contain. Section 134 of the Criminal Procedure Ordinance deals with this and there can be no possible doubt that the charge in this case did comply with that section.

The only other authority quoted was the case of *Willingale v. Norris* (1909), I K. B. 57. That decision does not seem to assist the respondent's case in the present appeal. The head note of the case begins as follows:-

"Where a statute gives power to an authority to make regulations, a breach of the regulations so made is an offence against the provisions of the statute."

That is, we think, well-settled law in England. As it was succinctly put by the Lord Chief Justice in Willingale's case: -

"The regulation is only the machinery by which Parliament has determined whether certain things shall or shall not be done."

## With the greatest respect we agree with that dictum.

We have been able to find nothing in the authorities quoted by the Supreme Court to support the conclusions at which that Court arrived, and for the reasons we have given we must respectfully differ from these conclusions.

We therefore allow the appeal, set aside the judgment of the Supreme Court on the only point considered by that Court, and remit the case to the Supreme Court to deal with the other points in the case on the basis that rule 21 and rule 67 of the Animals Diseases Rules, 1931, were validly made under section 7 (5) of the Animal Diseases Ordinance.

We must also add that the sentence of the Magistrate which ordered six months' imprisonment with hard labour in default of payment of the fine would appear to be wrong in that the maximum period of imprisonment in default by rule 67 as amended is two months. That is a matter which can be put right by the Supreme Court when it comes to consider the case on this remit.

$\mathcal{L}_{\mathcal{A}}$

$\alpha \in \mathbb{R}^n$

**Statistics**

$\mathcal{F} = \frac{1}{2} \mathcal{F}^2 + \frac{1}{2} \mathcal{F}^2 \mathcal{F}^2 + \mathcal{F}^2 \mathcal{F}^2 \mathcal{F}^2 + \mathcal{F}^2 \mathcal{F}^2 \mathcal{F}^2 + \mathcal{F}^2 \mathcal{F}^2 \mathcal{F}^2 + \mathcal{F}^2 \mathcal{F}^2 \mathcal{F}^2 + \mathcal{F}^2 \mathcal{F}^2 + \mathcal{F}^2 \mathcal{F}^2 \mathcal{F}^2 + \mathcal{F}^2 \mathcal{F}^2 + \mathcal{F}^2 \mathcal{F}$

$\mu_{\alpha}(\mu_{\alpha}^{\alpha})=\frac{1}{2}\mu_{\alpha}^{\alpha}(\mu_{\alpha}^{\alpha})$

the Discovery with the state

$\label{eq:1} \begin{array}{ll} \text{the order of the number of the number of the number of the number of the number of the number of odd.} \end{array}$

$\zeta_{\mathcal{A}}^{(1)}(x)$

ولالمعاد والرابي $\gamma_{\mu\gamma\gamma\gamma}$

$\langle \phi_{\rm{B}} \rangle = 0.12$ , we have $\phi_{\rm{B}}$ defined as $\phi_{\rm{B}}$ $\label{eq:1} \mathcal{L}_{\text{max}}(x) = \mathcal{L}(\mathcal{L}^{(0)}(x)) + \mathcal{L}(\mathcal{L}^{(0)}(x)) + \mathcal{L}(\mathcal{L}^{(0)}(x)) + \mathcal{L}(\mathcal{L}^{(0)}(x)) + \mathcal{L}(\mathcal{L}^{(0)}(x)) + \mathcal{L}(\mathcal{L}^{(0)}(x)) + \mathcal{L}(\mathcal{L}^{(0)}(x)) + \mathcal{L}(\mathcal{L}^{(0)}(x)) + \mathcal{L}(\mathcal{L}^{(0)}(x)) + \mathcal{L}(\mathcal{L}^{(0)}(x$

$\mathbb{P}_{\{1,2\}} \neq \emptyset$

$\epsilon_1, \epsilon_2, \ldots,$

$\left\{ \begin{array}{cc} 1 & 1 \\ 1 & 1 \end{array} \right\}$