(HIGH COURT)

FATMA IBRAHIM and OTHERS vs. ATTORNEY-GENERAL

 AC-CR.REV.-101-57

Principles

  Ultra vires-Local Government Ordinance-Local Orders. Section 55,para 3. part one of First Schedule-Eradication of prostitution

The Municipal Town Coucil of Khartoum purporting to act under section 55 of the Local Government Ordinance and in exercise of their powers under para.3 of Part one of the First Schedule passed a local order forbidding prostitutes from residing in any house in certain named areas of Khartoum. A penalty was provided for contravening the order. The Accused having failed to move out of the district were summoned before the Khartoum Town Bench. They were convicted and finded £S.5 each. They appealed to the Police Magistrate, Khartoum. Who confirmed the decision of the Town Bench. The Accused appealed on the ground that the order was ultra vires.
Held: “whatever may be fairly regarded as incidental to or consequential upon those things which the legislature authorized, ought not (unless expressly prohibited) to be held, by judicial construction to be ultra vires.” LordSelbourne’s statement in Attorney-General vs. Great Eastern Railway Company (1880)     5 A.C. p. 473 applied. 
That the order, which has the purpose of segregating prostitutes and prohibiting them form living in certain areas is incidental and consequential upon the power to “eradicate Prostitution” in Part 1 of the First Schedule to the Local Government Ordinance and is not ultra vires. Decision of Town Bench and Police Magistrate cofirmed. 
 

Criminal Revision:

          Note by Soni J.

The point of law in this case arises as follows:- 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 4th December 1956 (confirmed by the Commissioner on 30th March 1957). The order defined a “common prostitute” and a “house for common prostitution” and said in section 3 :-

“No common prostitution or any person who keeps a house common prostitution shall reside in any house in the following blocks”  and the blocks are mentioned thereafter. Under section 4 a penalty is provided for any person contravening the order.

It has been objected by Counil for person prosecuted that this order is ultra vires. The argument is that the order does nor “ 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. Carrigage & Iron Co. vs. Riche, L.R. 7 H.L 653, and Attorney-General vs. Great Eastern Rly. Co. (1880) 5 A.C 473 have established the prostitution that:-

“Whenever a corporation is created by Act or Parliament with reference to the purposes of the Act, 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 Selbourne 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, these things which the legislature has authorised , ought not (unless expressly prohibited) to be held, by judicial construction to be ultravires.”

In another case, Attorney-General vs. Mersey Railway Co. (1907) A.C. 415, Lord Loreburn said:-

“The rule of law was laid down in this House to the effect that it must 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 in Interpretation of Statutes, 10th edition, states at p.361:-

“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 ist execution. Cui jurisdiction data est, ea quoque concessa esse videntur, sine quibus jurisdiction 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 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 eradication 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 in consideration and of segregation. The Coucil took areas of the Town in the consideration and forbade prostitutes from residing there. The Court can only consider whether the method falls within the scope of the Counicl’s authority as given to it by the warrant. If it does, the Courts can not scrutinise further and say that this method can not 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 of regulate and the power to suppress oreradicat. Had a power been given to the Council to regulate a 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 beingrecognised? Can not it be said that a laudable attempt is being made by the Town Counicl to proceede step by step, in forbidding prostitutes to reside in areas frequented by schoolchidren and son on?

At page 52 Maxwell states:

“The words of a statute, when there is doubt their meaning, are to be understood in the sense in which they bestharmonise 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 object to attained.”

I am of opinion that by the use of the word “Eradication” the legislature intended everything to be done which would be fairly constructed as tending 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 certaily by on his way to attian his object of “eradicating” weeds by this process. It has been said at page 111 (s.951) of the American book on Municipal Corporations by McQuillin (1928 edition):-

“First, it should be said that municipal corporations are prima facie the sole judges respecting the necessity andreasonbleness of their police ordinance. Every intendment is to be made in fovour of

the lawfulleness 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 detemination of the reasonabnleness of any specific regulation in the light of its knowledge is prima facie valid. Appropriate means to the exercise of the police power rest largely within the discretiion 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.”

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.

Babikir Awadalla J. :-

I have now been able to trace the note by Soni J. and I agree with his views. 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 form the Town Bench’s decision.

M.A. Abu Rannat C.J:-

I agree the above views and see no reason to interfere with decision of the Police Magistrate.

(Appeal dismissed)