Rex v Ngomeni (Cr. R. 40/1933.) [1933] EACJ 9 (1 January 1933)

# CRIMINAL REVISION.

### Before Lucie-Smith, J.

### REX

#### $v.$

## MWANA NGOMENI.

# Cr. R. 40/1933.

Cap. 51-Native Hut and Poll Tax-"Native"-Interpretation.

$Hcld$ (15-5-33).—That under section 3 of Cap. 51 a female native is not liable to pay hut tax.

Held Further.—That distress is a condition precedent to an order of<br>imprisonment under section 8. Rex v. Mzee, 10 K. L. R. 7, referred to.

Ross for Petitioner.

$\mathcal{L}(\mathcal{A})$

Crown not represented.

ORDER.—This case comes before the Court for revision on the petition of Mwana Ngomeni, who was convicted and sentenced in the lower Court under section 8 $(1)$ and $(2)$ of Cap. 51.

A minor point taken by the accused's advocate was that the form of alternative imprisonment was wrong, presumably because no distress warrant has issued, and that the issue of such distress and default therein is a condition precedent to any order of imprisonment. The case of Mzee, reported in 10 K. L. R., page 7, was quoted in support. It is clear from section 8 of Cap. 51 and the case referred to, that imprisonment can only be ordered in default of distress, so that in this case the form of sentence and order will have to be varied in any event.

The next point taken by learned counsel was a submission that a female is not liable to hut tax under section 3 of Cap. 51, the material part of that section reading as follows: "There shall be paid annually by every native a tax in respect of every hut owned by him." Had the section stopped here there would be no difficulty in interpretation with the assistance of the definition of the term "native".

The section, however, continues: "and if any such native has more than one wife living in one hut, he shall pay a further tax, etc."

The term "native", unless inconsistent with the context, means "any native of Africa not being of European or Asiatic race or origin, and includes any Swahili." And under Cap. 1 words importing the masculine gender shall include females. unless the contrary intention appears. Maxwell, in his work on the subject (7th Edition), states that statutes which encroach

on the rights of the subject whether as regards person or property are subject to a strict construction, and again, "It is presumed, where the objects of the act do not obviously imply such an intention that the Legislature does not desire to confiscate the property, or to encroach upon the right of persons, and it is therefore expected that, if such be its intention, it will manifest it plainly, if not in express words, at least by clear implication and beyond reasonable doubt." This statement is based on the dictum of Lord Watson in the Privy Council in Western Countries Railway Co. v. Windsor and Annapolis Railway Co., 7 A. C. at p. 188. I understand that Maxwell was cited with approval in a case before the Court of Criminal Appeal last November, but I have been unable to refer to the case, as those reports are with the bookbinders. (Rex v. Chapman, 23 C. A. R. p. 63 at p. 66.)

In the case of The Queen v. Barclay, 8 Q. B. D. 306, Field, J., at p. 312, lays down that "It is a very well established rule for the construction of statutes that, if they impose a charge on the subject, they must be strictly construed as against the party in whose favour the charge is imposed." And this exposition of the law was quoted with approval by Grove, J., in Davis v. Evans, 9 Q. B. D. 238 at p. 242. What is perhaps the leading case on this question of construction is Tennant v. Smith (1892), A. C. 150, per Lord Halsbury at p. 154. In his judgment, the learned Lord Chancellor quotes with approval the words of Lord Wensleydale in In te Micklethwait, 11 Ex. at p. 456: "It is a well established rule that the subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to the natural construction of its words."

The judgment of Lord Halsbury on this point was quoted with approval by Smith, L. J., in Attorney General v. Beech (1898), 2 Q. B. D. 147 at p. 150, and also by Chitty, L. J., at p. 155. This judgment of Lord Halsbury was again quoted with approval by Sankey, L. J., in Tilling Stevens Motors Limited v. Kent County Council, 97 L. J. Ch. D. 371 at p. 373, and again by the same learned Lord Justice in I. R. Commissioners v. Dalgety and Co., 98 L. J. K. B. D. 542, at p. 554. In his judgment in this case the Lord Justice says, at p. 553: "In construing Income Tax Acts one must not forget the canon to be employed. The Court is not to be guided so much by the objects which they think such Acts are to achieve, as by considering whether the words of the Act have reached the alleged subject of taxation."

Bearing in mind the principles above enunciated, let us proceed to an examination of section 3 of the Ordinance. The first part of that section would appear to impose a tax in respect of every hut owned by natives, but the use of the word "such" in line four of the section would appear to limit the class of native to those who may have wives, i.e. male natives, for the section

goes on to say "and if any such native" (that is a native liable to pay a tax on his hut) "has more than one wife living in one hut, he shall pay a further tax of six shillings in respect of each additional wife living in such hut".

Bearing in mind then the words above quoted of Sankey, L. J., in $I. R.$ Commissioners v. Dalgety and Co., it appears to me that the subject of taxation aimed at is primarily huts owned by male natives, and secondarily (if such (male) native has more than one wife living in a hut), each additional wife so living in such hut.

Sections 5 and 15 would appear to bear out the proposition that it is the huts of male natives that are aimed at by the Legislature for purposes of taxation. If my interpretation be correct, the liability of women to pay any tax under this Ordinance is not merely questionable: that they are not so liable is beyond doubt. It therefore follows that section 8 (1), which is the penalty clause for breach of section 3, can only apply to the class of natives to which section 3 is addressed, viz. male natives.

Had the Legislature intended that women should be taxed in respect of huts owned by them, such intention could have been put beyond doubt by excising the last three lines of the section, from the words "and, if any such native," etc., and inserting a proviso to the effect that if any male native had more than one wife living in a hut owned by him then he should pay an additional tax in respect of each such additional wife.

Having arrived at this conclusion, there is no need for me to deal with the other point raised by Mr. Ross as to whether the accused herein is a "native" within the definition laid down by the Ordinance, and more particularly the question of what is a Swahili within the meaning of that definition.

Taking into consideration the importance which may very possibly apply to this case, I think it a matter of great regret that the Crown were not represented at this revision.

The conviction and sentence is quashed.

$Note.-A$ District Commissioner wished to appear for the Crown, holding an authority from the Attorney General under section 83, Criminal Procedure Code.

Held.-That in the absence of a delegation of the Governor's powers under section 83 (1), such authority was bad as regards a Revision Case.

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