Case No.:

AC.CR.REV.101-1957

Court:

Court of Criminal Appeal

Issue No.:

1961

Principles

·  Local Government — Local Government Ordinance, 1951, First Schedule , Part 1, s. 3 — power to eradicate prostitution includes everything fairly construed as tending to eradicate local government local Government Ordinance, 1951 5. (1)—Power granted by warrant impliedly includes everything essentially necessary to its execution unless unreasonable or oppressive to individual or property rights

The accused were convicted by the Town Bench, Khartoum, of violating Khartoum Municipal Council local Order No. 2, which states: “ No common prostitute or any person who keeps a house for common prostitution shall reside in any house in the following blocks … The order specified certain areas in the third class residential extension in Khartoum South. Defendants appealed to the police magistrate on the grounds that the passage of Local Order No. 2 was not within the scope of the power to eradicate prostitution conferred on the Municipal Town Council by warrant pursuant to Local Government Ordinance, 1951, s.5 and First Schedule, Part 1, s. 3. The case came before the Chief Justice pursuant to Code of Criminal Procedure. s. 257 (1).
Held: Since the words in the warrant “ to eradicate “ must be construed as meaning everything “ fairly construed as tending to eradicate,” the Khartoum Town Council did not act ultra vires in passing Local Order No. 2, and the conviction below is affirmed.
Obiter dictum : Where n enabling act and warrant pursuant thereto confer a power on a municipal town council, they impliedly grant the power of doing all a Is and employing all means and methods “ essentia’ly necessary to their execution “ unless “the means employed amount to an unreasonable and oppressive interference with individual and property rights and constitute an abuse rather than a legitimate use of power.”

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT v. FATMA IBRAHIM AND OTHERS

AC.CR.REV.101-1957

Advocates: Ahmed Soliman and A. M. Abdel Wahab ………. for the accused Hisham R. Hashed for the Attorney-General

R. C. Soni 1. February 12, 1959:—The Municipal Town Council of Khartoum has been empowered under its warrant under the Local Government Ordinance, 1951. to have, amongst the powers mentioned in the First Schedule to the Ordinance, the power ‘ to eradicate prostitution.”

Purporting to exercise this power the Town Council issued an order on April , 91957  (confirmed by the Commissioner on June 15, 1957). The order defined a common prostitute” and a house for common prostitution” and said in section 3:

No common prostitute or any person who keeps a house for common prostitution shall reside in any house in the following blocks.”

The blocks are mentioned thereafter. Under section 4 a penalty is provided for any person contravening the order.

It has been objected by counsel for persons prosecuted that this order is ultra vires. The argument is that the order does not eradicate” prostitution but in effect recognises its legitimacy. The question is whether this argument is valid and whether this is the meaning of the order.

Two rulings of the House of Lords in England given in Ashbury Ry. Carriage and Iron Co. v. Riche (1875) L.R. 7 H.L. 653, and Att.-Gen v, Great Eastern Ry. (188o)  5 App.Cas. 473 have established the proposition that:

"Whenever a corporation is created by Act of  Parliament  with  reference to the purposes of the Al and solely with a view to carrying these purposes into execution. I am of opinion not only that the objects which the corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions.”

In the second of  these  rulings. Lord Selborne said at p. 478:

"I agree with Lord Justice James that this doctrine ought to be reasonably and not unreasonably, understood and applied, and that whatever may. fairly be regarded as incidental to, or consequential upon. Those  things which the legislature has authorised, ought not (un-less expressly prohibited) to be held, by judicial constructions to be ultra vires”

In another case, Att.-Gen. v. Mersey Ry.1907 AC. 415, Lord Loreburn said

"The rule of law laid down in this House is to the effect that it must be shown that the business can fairly be regarded as incidental to or consequential upon the use of the statutory powers; and that it is a question in each case whether it is so or whether it is not so Maxwell, Interpretation of Statutes 361 (10th ed., 1953) states:

"Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are

essentially  necessary  to its execution. Cui jurisdiction data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non potuit. Thus, an Act which empowered justices to require persons to take an oath as special constables, and gave them jurisdiction to inquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those purposes. Otherwise, the jurisdiction could not be effectually exercised.”

In the case before us the power is given to eradicate prostitution. The ways and means and methods to achieve this end are left in the discretion of the town council. The method adopted by the town council is that of segregation. The council took areas of the town into consideration and forbade prostitutes from residing there. The courts can only consider whether the method falls within the scope of  the council’ authority as given to it by the warrant. If it does, the courts cannot scrutinise further and say that this method cannot be adopted unless it collides with some other provision of law. It is not the function of courts to prohibit acts of the council which are within their discretion.

It should be remembered that there is a distinction between the power to regulate and the power to suppress or eradicate. Had a power been given to the council to regulate a trade, it could not pass orders the effect of which would be the extinction of the trade. But it is not so when there is a reverse case. The council has powers given to it to eradicate prostitution. This is by no means an easy task. It has, been vulgarly said that prostitution is the oldest profession known to society. Can it be postulated with certainty that the order of the town council forbidding prostitutes from residing in certain areas means necessarily that prostitution is being recognized ? Cannot it be said that a laudable attempt is being made by the town council to proceed, step by step, in forbidding prostitutes to reside in areas frequented by school children and so on ?

Maxwell further states:

“The words of a statute, when there is doubt about their meaning. are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical ‘or etymological propriety of. language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the abject to be attained.” Maxwell, Interpretation of Statutes 52 (15th ed., 1953).

I am of opinion that by the use of the word “eradication” the legislature intended everything to be done which would be fairly construed as tensing to eradicate. An agronomist having in view a field wherefrom he would like the weeds to be eradicated may plan to divide the field in areas and set about killing the weeds from that area. He would certainly be on his way to

attain his object of " eradicating” weeds by this process. It has been said by the American author Mcquillan:

First, it should be said that municipal corporations are prima fade the sole judges respecting the necessity and reasonableness of their police ordinance. Every intendment is to be made in favour of the lawfulness and reasonableness of the exercise of the police power in promulgating regulations to promote the public health, morals, safety and general welfare, and only in clearest cases will courts interfere. The city is presumed to have full knowledge of local conditions and its determination of the reasonableness of any specific regulation in the light of this knowledge is prima facie valid. Appropriate means to the exercise of the police power rest largely within the discretion of municipal authorities and courts will not interfere unless the means employed amount to an unreasonable and oppressive interference with individual and property rights and constitute an abuse rather than a legitimate use of power.”  Mcquillan , Municipal Corporations. S . 951. at p. 111 (1928).

I do not find that the Khartoum Town Council is acting ultra vires. I do not find that it is using its power unreasonably and oppressively interfering with any rights of anybody.

Babiker Awadalla J. February 4. 1959 :—I have now been able to trace the note by Soni J. and I agree with his view. I think that it would be wrong to interfere with the decision of the learned police magistrate to whom the matter was referred on appeal from the town bench’s decision.

M. A. Abu Rannat CJ. February 12. 1959:—I agree with the above views and see no reason to intervene with the decision of the police magistrate.