[1946] EACA 15

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

LIMBE TOWN COUNCIL, Appellants (Original Defendants)

ROBERT HUNTER KIRCALDY, Respondent (Original Plaintiff) Civil Appeal No. 24 of 1946

(Appeal from decision of H. M. High Court of Nyasaland)

Town Council—By-law—Validity—Town planning—"Good rule and government" -Township Ordinance (Nyasaland) section 29.

The Town Council of Limbe acting under the powers conferred upon it by section 29 of the Townships Ordinance to "make by-laws for the good rule and government of the Township" of Limbe made the following by-law: -

"The Council may disapprove of any plans on the following grounds: that the site of any proposed building on the plan is such that the erection of such building would contravene or affect detrimentally any town planning scheme or proposed town planning scheme."

The question for decision was whether the by-law was intra vires and valid.

Held (27-8-46).—(1) Town planning is clearly for the good rule and government of a township.

(2) The by-law in question is neither unreasonable nor uncertain.

(3) It is consequently intra vires and valid.

Appeal allowed.

Kruse v. Johnson 78 L. T. R. 647 referred to.

Modera for Appellants.

Wilkinson for Respondent.

SIR JOSEPH SHERIDAN, C. J.—The following by-law was made by the Town Councils of Blantyre and Limbe under section 29 of the Townships Ordinance (Cap. 21 of the Laws of Nyasaland) and approved by the Governor in Council on the 13th January, 1938. The by-law is 32 (6) (i) and provides: -

"The Council may disapprove of any plans on the following grounds: that the site of any proposed building on the plan is such that the erection of such building would contravene or affect detrimentally any town planning scheme or proposed town planning scheme."

In the case of Kirkcaldy v. The Limbe Town Council on appeal to this Court from a judgment of the High Court declaring the by-law to be ultra vires it was contended for the appellant Council (1) that the by-law was *intra vires* and (2) that it was both reasonable and certain and consequently valid. The judgment concluded "The plaintiff's application for a mandamus is granted, and I order that the Limbe Town Council shall reconsider the plaintiff's application at its next meeting and in so doing have in view the fact that by-law 32 (6) (i) of the Council's by-laws has been found to be *ultra vires* and accordingly not taken into consideration". Earlier in the judgment there appears the passage "Turning to the first part power to make by-laws for the good rule and government of the township". It does appear at first sight as if the by-law in question might come within those words. Town planning clearly is for the good rule and government

of the township. I am of opinion however that those words do not give the bylaws making authority power to make by-laws concerning town planning. As was argued by counsel for the plaintiff town planning in England is governed by Act of Parliament. Town planning in the Colonies is governed by similar legislation. A perusal of such legislation shows that town planning authorities are set up, local government authorities are authorized to prepare schemes, such schemes have to be approved by the town planning authority, then the schemes are required to be published to enable the public to register objections, and provisions are included concerning action under the scheme and for compensation to persons adversely affected. I am of opinion that no such legislation making power comes under section 29 of the Township Ordinance Cap. 21 by virtue of the words "good rule and government".

I agree with the learned Chief Justice that town planning clearly is for the good rule and government of the township, but I do not agree that because town planning in England is governed by Act of Parliament and in the Colonies (presumably the reference is to other Colonies) by similar legislation that there must be similar legislation in Nyasaland to make such a by-law as that in question intra vires. The legislature by section 29 of the Townships Ordinance has provided "Every Council may, subject to the approval of the Governor in Council make by-laws for the good rule and government of the Township". Town planning is clearly for the good rule and Government of the township and it is admitted that there is a "proposed town planning scheme for the township" in existence and that part of that scheme is the segregation of commercial and residential areas. It may be that the proposed scheme may never be approved or if approved that it may be subject to various alterations. The point is that there is a scheme and it seems to me that it would be contrary to good rule and government, if the Council did not consider applications such as the one in question which is to erect a store or shop in the residential area or rather the area to be reserved as a residential area in the light of the proposed scheme. Otherwise the Council might find itself in the invidious position that having allowed a business premises to be built in the residential area it might feel called on to order the removal of such building from the residential area under the special powers conferred by section 28 of the Ordinance with all the consequent damage, loss and assessment of compensation. In considering whether a particular by-law is invalid for unreasonableness the following passage from the judgment of Russell, C. J., in Kruse v. Johnson 78 L. T. R. 647 at pages 649 and 650 is in the point: $-$

"The great majority of the cases in which the question of by-laws has been discussed are not cases of by-laws of bodies of a public representative character entrusted by Parliament with delegated authority, but are for the most part cases of Railway Companies, dock companies or other like companies which carry on their business for their own profit, although incidentally for the benefit of the public. In this class of case it is right that the Courts should jealously watch the exercise of their powers and guard against their unnecessary exercise to the public disadvantage. But when the court is called upon to consider the by-laws of public representative bodies clothed with the ample authority which I have described and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible. They<br>ought to be, as has been said, 'benevolently' interpreted and credit ought to be given to those who have to interpret them that they will be reasonably administered . . . I think Courts of Justice ought to be slow to condemn as invalid any by-laws so made on the ground of supposed unreasonableness."

To conclude, I am of the opinion that the by-law in question is *intra vires* and that it is valid as being neither unreasonable nor uncertain for the language of the by-law is perfectly clear. I would allow the appeal with costs in this Court and the High Court and set aside the order of the High Court.

SIR NORMAN WHITLEY, C. J.-I have had the advantage of reading the judgments of the learned President and the learned Chief Justice of Tanganyika with which I am in complete agreement. I do not feel that there is anything which I could usefully add.

SIR G. GRAHAM PAUL, C. J.—I have had the advantage of reading the judgment of the learned President with which I find myself in respectful agreement. I add a few observations of my own out of respect for the learned Chief Justice with whose judgment this Court is unable to agree.

The basis of my view of this case is the proposition that "town-planning is for the good rule and government of the township". The learned Chief Justice in his judgment has stated and upheld that proposition and I think that the proposition is indeed unassailable.

Once that proposition is accepted it seems to me clear that section 29 (1) of the Townships Ordinance does give the Town Council power to make by-laws dealing with Town Planning for section 29 (1) is in the following terms:

"Every Council may, subject to the approval of the Governor $i_n$ Council, make by-laws for the good rule and government of the Township, and more especially for any of the following purposes"...

Then follow thirty-three sub-sections specifying purposes.

I may say at once that I am unable to accept the proposition that the enumeration of thirty-three sections specifying purposes was intended to be exhaustive or to limit the general empowering terms to the main enacting part of section 29 (1). The effect of the section in my view is to empower the Council to make by-laws governing any subject which comes within the description of being "for the good rule and government of the township".

The by-law in question in this case is No. 32 (6) (i) which is in the following terms:-

"The Council may disapprove any plans on the following grounds: -

$\ldots \ldots$

(i) that the site of any proposed building on the plan is such that the erection of such building would contravene or affect detrimentally any town planning scheme or proposed town planning scheme for the township."

It is not disputed that a town planning scheme has been proposed by this particular town council or that the particular building if its erection had been permitted would "contravene or affect detrimentally" that proposed scheme. If, as the learned Chief Justice agrees, the Town Council in proposing the town planning scheme was exercising its powers of good rule and government of the township it seems to me manifest that the Council would be in serious neglect of its duties of good rule and government if it did not take effective steps to prevent buildings going up which would be in contravention of their proposed scheme.

If the proposed scheme were approved by Government and brought into effect it would involve at least the possibility that such buildings would afterwards have to be pulled down and compensation given under section 28 of the Townships Ordinance. It is even conceivable that approval of the scheme might be

refused on the ground that by permitting the erection of buildings in contravention of their schemes the Council had made the scheme too expensive in compensation to be justified.

A further important consideration is of course that we are dealing here not with a profit-making enterprise like a Railway Company but with a public representative body which is bound to hold its meetings in public with the representatives of the press present. The members of the body are elected by members of the community and presumably chosen because they are considered fit to be entrusted with the good rule and government of the township. It is therefore in my view a case in which the Courts should be astute to support the by-laws made by the Council. There is the further definite safeguard that the by-laws can be made only with the approval of the Governor in Council.

It further seems clear to me that the by-law in question cannot be attacked on the grounds of uncertainty or unreasonableness. It is quite certain and definite in its terms and as I have indicated it would in my view be not only unreasonableness but neglect of their duty for the Council having proposed a scheme not to take the step which this by-law embodies.

I would allow the appeal, set aside the judgment of the learned Chief Justice, and direct that the by-law in question is intra vires and valid, with costs to the appellant in this Court and in the Court below, any costs in the Court below paid by the appellants of course to be refunded.