Case No.:

NO

Court:

Province Court

Issue No.:

1960

Principles

·  Subordinate legislation—Powers of delegated legislation must he exercised strictly in accordance with the statutory safeguards—Foodstuffs and Necessaries Ordiname, s. 18

·  Criminal Law—Sudan Penal Code, s. 163 of offence created hy—lgnorantia legis non-excusat, when applicable

A power of delegated legislation must be exercised trictly in accordance with the conditions and limitations laid down in the Ordinance delegating such power. Meaning of ‘lawfully empowered” considered.

Where an offence requires knowledge of the promulgation of an order, such knowledge cannot be imputed from mere publication of such order in the local press and on public notice boards.

Judgment

(COURT OF MAGISTRATE OF THE SECOND CLASS, EL. OBEID)

SUDAN GOVERNMENT v. ABDEL WAHAB MOHAMED AND

ABDULLAHI MOHAMED EL BALLAH AND BUSRA EL TAYEB

Trial

Advocates: Sol Alam A. Ali… for the prosecution

                   El Hag El Tahir Ahmed..for the accused

February 16, 1960. A. A. W. Kwai, Magistrate of the Second Class : — On August 26, 1959, T Acting Governor of Kordofan Province issued order under section 18 of Foodstuffs and Necessaries Ordinance, 1926. The order purported to prohibit the removal of wheat flour from Kordofan r’rovince to places outside that province. The mode of which the public was to be informed of the order was:

(1) By publication in the Kordofan Newspaper; and

(2)By affixing a copy of the order on public notice boards.

Before October 20, 1959, and after the issue of the order the first two accused loaded a quantity of wheat flour intended to be distributed to certain persons in Darfur Province. The third accused carried the load from El Obeid but was confronted and arrested by the police of Nahud on his way to Darfur Province. The accused were charged by the police with disobeying the order of the Acting Governor, Kordofan, duly promul gated on August 25,1959

The accused did no deny having loaded wheat flour with the intention to dispatch it to Darfur Province. They, however, pleaded ignorance of the order. That plea directly raised the implications of the maxim ignorantia legis non-excusat. Is ignorance of law an excuse in this particular case? Advocate El Hag El Tahir Ahmed contended with much force that in order to bring the accused within the purview of section 163 of the Penal Code the prosecution must sI not only that publication of the Governor’s order was made lip the Kordofan Newspaper and a copy of it was affixed to the public notice boards but also that the accused read either the publicationS in the Kordof an Newspaper or on the public notice boards. Advocate El Hag El Tahir said knowledge of the Governor’s order was such a vital ingredient under section 163 of the Sudan Penal Code that if the prosecution failed to prove it on the side of the accused the charge must be considered groundless. I agree entirely with the learned advocate’s submission. Section 163 is as clear as the legislature could have been expected to make it. The section states as followings:

“Whoever knowing that by an order promulgated by a public servant lawfully empowered to promulgate such order….”

Stopping here, let us consider what this part means. It seems to me that the section requires the following:

(a) the accused must know that an order has in fact been promulgated; and

(b) the person making the order must be lawfully empowered to promulgate such order.

As regards the first ingredient the prosecution to show that the accused knew of this order has adduced no evidence. Mere publication in the Kordofan Newspaper or some other mode of purporting to let the public know of the order is not enough. There must be a de facto knowledge of the order. In this case ignorantia legis excusat. Turning to the secqnd ingredient: the section says the person making the order must be Iawf empowered to do so. Was the Governor of Kordofan Province lawfully empowered to make the order of August 25, 1959? In answering this question)- has to turn to the law which empowers the Governor to make orders of this nature. The order is purported to be made under section i8 of Foodstuffs and Necessaries Ordinance, 1926. That section requires, inter alia, the previous consent of the Minister of Commerce to an order of the Governor. In other words the Governor’s powers under this section are not absolute. If, therefore, an order is made without the previous consent of the Minister that order is null and void and it seems that even its ratification will not give it a retrospective effect. It cannot, therefore, be properly called “an order duly promulgated by a public servant lawfully empowered to promulgate such order.” The order is illegal.

From the evidence before this court the prior consent of the MiniStet of Commerce was not obtained when the Governor’s order was on August 25, 1959. In the result that order is considered illegal and conse quently the accu had nothing in law to disobey. The accused’s acquittal is ordered.

                                                             (Acquittal)