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ATTORNEY GENERAL v W.K. BUTAMBALA 1993 TLR 46 (CA)

 


ATTORNEY GENERAL v W.K. BUTAMBALA 1993 TLR 46 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Makame JJA and Ramadhani JJA and Mapigano Ag JA

E CRIMINAL APPEAL NO. 37 OF 1991

14 June, 1991

F (From the decision of the High Court of Tanzania at Mwanza, Mwalusanya, J.)

Flynote

Constitutional Law - Jurisdiction of the High Court to enforce basic rights enshrined

in the Constitution - Judge raises issue of constitutionality without there being a

complaint - Whether judge has jurisdiction.

G Bill of Rights - Procedure and practice of the High Court in enforcing

constitutional bill of rights - Judge raises issue of constitutionality without there being

any complaint to court - Whether procedurally proper.

-Headnote

H The respondent, advocate, handled three legal aid briefs. After the sessions were

closed the respondent wrote to the Trial Judge the usual letter to have his fees

assessed in terms of the Legal Aid (Criminal Proceedings) Act, No. 21 of 1969. After

receiving the letter the judge thought that the advocates remuneration of between

Shs 120/= and Shs 500/= in each case was grossly inadequate and contravened the

provisions of Article 23 of the Constitution of the United Republic of Tanzania. I

The judge instructed the District Registrar of the High Court to open a Miscella-

1993 TLR p47

neous Criminal Cause, set the hearing date of the application and serve the parties

who were W.K. A Butambala and the Attorney-General.

The parties attended the hearing. The State-Attorney who represented the Attorney

General raised a preliminary point urging that there should have been a petition in

terms of Article 30(3) of the Constitution to the High Court moving the Court into

action. The state attorney was overruled, hearing B continued and the judge decided

that the paltry sums mentioned in s 4 of Act 21 of 1969 were void because they

contravened a constitutional right to a fair remuneration for work done. The learned

judge construed s 4 of Act 21 of 1969 as modified to bring it into conformity with the

provisions of the Bill of Rights. Then the judge assessed the fees payable to the

advocate at Shs 10,000/= for the C three cases (almost 667% of the maximum the

advocate would have got under s 4 of Act 21 of 1969).

The Attorney-General appealed challenging the judge for raising the issue of

constitutionality suo moto. The procedure followed was also attacked.

Held: (i) The learned judge improperly raised the issue of constitutionality as

there was no legitimately permissible occasion for him to do so; D

(ii) If one relies on s 5(1) of Act 16 of 1984 he has to wait until the matter

arises in the course of proceedings so that the court gets the opportunity to construe;

otherwise he has to petition under Article 30(3) of the Constitution as usual;

(iii) Section 4 of Act 21 of 1969 is still good law. E

Case Information

Appeal allowed.

Cases referred to:

1. Steele v. Attorney General [1967] AIR SL 1.

2. D.P.P. v. Daudi Pete, [1993] TLR 22. F

3. Bull v. Minister of Home Affairs [1986] (1) ZLR 202.

4. Grace Stuart Ibingira v. Uganda [1966] EA 445 CA.

K.A. Mussa, for the appellant.

Rugarabamu, for the respondent. G

[zJDz]Judgment

Makame, J.A., delivered the following considered judgment of the court:

The respondent is an advocate. One of the responsibilities of advocates in Tanzania is

to accept H assignments fro appropriate authorities in the Judiciary to defend

accused persons. Mr Butambala accepted three such briefs and handled them before

Mwalusanya J. They were Criminal Sessions Cases No 66 of 1988; 18 of 1988 and No

113 of 1989. After the Sessions had closed he wrote to the Trial Judge the usual letter

(not in the record but which was shown to us during the hearing) to have I his fees

assessed in terms of

1993 TLR p48

MAKAME JA

A the Legal Aid (Criminal Proceedings) Act 21 of 1969. That triggered off the while

thing and set in motion a number of processes culminating in this appeal. After

receiving the letter the learned Judge wrote the following administrative minute:

B District Registrar

1. Under s 4 of the Legal Aid (Criminal Proceedings) Act No 21/1969, the

advocate is to be remunerated between

Shs 120/= to Shs 500/= in each case. Such a paltry sum is outrageous and

needs to be looked into.

C 2. Under the Bill of Rights in Art 23 of our Constitution every person who

undertakes to do any work has the right to receive a just and favourable

remuneration. He is entitled to receive remuneration according to the quantity and

quality of the work done. Now it would appear that Act No 21/1969 infringes the

above cited provision of the Bill of Rights. Therefore unless D it can be shown on a

balance of probabilities by the Republic that under Art 30(2) of the Constitution the

said Act No 21/1969 is in public interest, it cannot prevail.

3. Therefore under s 5(1) of Act No 16/1984 I intend to construe s 4 of Act

No 21/1969 as modified so as to bring it into conformity with the provisions of the

Bill of Rights. Therefore I E will regard the paltry sums mentioned in s 4 of Act No

21/1969 as void and modified, so that now it should read that an advocate shall be

`entitled to be remunerated according to the quantity and quality of the work done'.

For this view see my judgments in Bernado s/o Ephraim v Holaria Patory & Another:

Mwanza (PC) Civil Appeal No 70/1989; and F Magdalena Zacharia v Daniel

Zacharia: Mwanza (PC) Civil Appeal No 23/1989. See also the case of Re Maangi:

[1968] EA 637 (K) by Farfel J.

4. Open a Misc Crm Cause No 50/90 and add to the title: In the Matter of

s 4 of the Legal Aid G (Crim Proceeedings) Act No 21/1969, and In the Matter of

Musoma Crim Sessions Cases No 66/1988; 18/1988; and 113/1989. W K Butambala -

Applicant and Attorney-General as respondent.

5. Set this application for hearing on 27/7/1990 and serve the above

minute to the State Attorney and Mr Butambala immediately.

H (SGD) J L MWALUSANYA

JUDGE.

24/7/1990.

I The District Registrar communicated the contents of the above minute to Mr

Butambala.

1993 TLR p49

MAKAME JA

By a Notice dated 24 July 1990, addressed to the Principal State Attorney, Mwanza,

and copied to Mr A Butambala, the hearing was fixed for 27 July 1990 as ordered by

the learned Judge. On the return date Mr Malansha, learned State Attorney, for the

Attorney-General informed the court that the Chambers were not ready to proceed as

they had not yet made the necessary preparations, so they B were asking for an

adjournment. A new hearing date was fixed for four days hence and on that second

date, the Chambers, now represented by Mr Mussa, learned Senior State Attorney,

told the learned Judge they were not ready so he asked for an adjournment until 3

August 1990. His lordship obliged: C

`Hearing on 3/8/1990. Parties warned.'

On the hearing date Mr Mussa, taking a preliminary point, challenged the whole

exercise, urging that there should have been a petition in terms of article 30(3) of the

Constitution of the United Republic of D Tanzania, to the High Court moving the

court into action. Mr Butambala, who appeared in person, urged that the matter was

properly before the court as under s 5(1) of Act 16 of 1984, the Constitution

(Consequential, Transitional and Temporary Provisions) Act, it was not necessary to

file E a petition.

In an expeditious Ruling on the same day, Mr Mussa was overruled. Incredible

though it may sound, the substantive hearing proceeded on the same day. On 22nd of

January this year the learned Trial Judge, in a rather lengthy judgment, reviewing an

array of authorities, held thus: F

`In the upshot, under s 5(1) of Act No 16/1984 I hereby construe s 4 of the Act

No 21/1969 to be modified so as to bring it into conformity with the provisions of our

Bill of Rights. Therefore I will take it that the paltry sums mentioned in s 4 of Act No

21/1969 are void, and modified to read that an advocate in local aid cases shall be

entitled to be G remunerated according to the quantity and quality of the work done

as assessed by the certifying authority.'

The learned Judge then proceeded to assess the fees to be paid to Mr Butambala for

the three H cases referred to. He ordered that the learned Advocate should be paid

Shs 5,000/= for one of the cases, and Shs 2,500/= for each of the other two cases, total

Shs 10,000/=, that is, arithmetically, almost 667% of the maximum of what Mr

Butambala could have hoped to get under s 4 of the Local Aid (Criminal Proceedings)

Act 21 of 1969. I

1993 TLR p50

MAKAME JA

A The Attorney-General was not satisfied with the High Court decision so he took

this appeal. He was represented before us by the same Mr Mussa. The respondent,

who was present in Court, was represented by Mr Rugarabamu, the most senior of

private advocates based here in Mwanza.

B The Attorney-General's Memorandum consisted of five grounds of appeal. We

propose to deal with the first two grounds first. In those two grounds the appellant

complained that the learned Judge was in error to raise the issue of constitutionality

without there being a complaint `from the allegedly aggrieved respondent'. The

second ground of appeal urged that as the said application raised C matters of both

fact and law, it was wrong to arrive at a decision without there being a factual basis

for such a decision.

In his address to the court on those two grounds Mr Mussa submitted that there

should have been a D complaint made by Mr Butambala, with material facts, that he

has a Constitutional right, (in this case the right to receive a just and favourable

remuneration for work done) and that that right had been infringed. He referred us to

Steele v Attorney-General (1), a decision of the Supreme Court of Sierra Leone. In the

present case Mr Butambala merely asked for his fees to be assessed in E accordance

with the existing law and nothing more. The Criminal Sessions case records allegedly

giving rise to the High Court proceedings were not made available for the purpose.

Along with this Mr Mussa submitted that it was wrong for the Judge to hold that he

had competent jurisdiction by virtue F of Act 16 of 1984 referred to so that he could

proceed the way he did even in the absence of a complaint. The learned Judge

proceeded suo motu which he was not empowered to do. If Mr Butambala was a

complainant then there is a provision available - article 30(3) and (4). Mr Mussa

further added that the learned Judge erred in his observation that under article 30(3)

the filing of a G petition to the High Court is not the only recourse because it is

provided that that avenue is `without prejudice to any other action or remedy

lawfully available to him in respect of the same matter'. The point Mr Mussa was

making here is that the learned Judge misled himself into relying on these H words

which are not in the Kiswahili version. We may pause and say that Mr Mussa is right

here. The Kiswahili rendering goes like this:

I `30(3) Mtu ye yote anayedai kuva sharti lo loto katika Sehemu hii ya Sura hii

au katika sheria yo yote inayohusu haki yake au wajibu kwake, limevunjwa,

linavunjwa au inaelekea litavunjwa na mtu ye

1993 TLR p51

MAKAME JA

yote popote katika Jamhuri ya Muungano anaweza kufungua shauri katika

Mahakana Kuu.' A

We note from this that there is not the usual `Bila ya kuathiri . . .' `Without

prejudice . . .'.

So that under article 30(3) one has to institute proceedings for relief in the High

Court and the Kiswahili version, which is the controlling version, does not provide

for other means. B

We now turn to Mr Rugrabamu's response on the first two grounds which he argued

together. He argued in effect that it is correct that the whole thing started with

Mwalusanya J's view that the fees paid to advocates under the 1969 law were

inadequate. Mr Rugarabamu conceded that Mr C Butambala did not complain.

Rather he and the Attorney-General were invited as amicus curiae to whom the

learned Judge posed a problem involving the interpretation of the Constitution and

asked them to assist. According to the learned Advocate, the learned Judge had the

power to go about D construing the Constitution that way because the particular

law, Act 21 of 1969, was enacted before 1985. According to Mr Rugarabamu it is

unnecessary to make a complaint before the court so the first two grounds have no

merit. E

As we see it the first two grounds involve two distinct issues - one of jurisdiction and

the second one of procedure. They were however consolidated in learned arguments

and we propose to treat them similarly. Before we do that we think it is opportune to

interject a few brief remarks. We need F hardly say that our Constitution is a serious

and solemn document. We think that invoking it and knocking down laws or

portions of them should be reserved for appropriate and really momentous occasions.

Things which can easily be taken up by administrative initiative are best pursued in

that manner. If we may be permitted to borrow and extend the term `Ambulance

Lawyers' in currency in G certain jurisdiction, it is not desirable to reach a situation

where we have `ambulance courts' which go round looking for situations where we

can invalidate statutes. We say this deliberately and by design, and we do not think

this is conservative in the negative same. We think it is responsible and responsive to

the needs of our Society. There is, or should be, plenty of room for judges and H

magistrates to make positive and constructive inputs which can influence legislation

in the right direction. The old practice where judges and magistrates used to construct

such opinions for consideration by their own higher authorities or conferences should

continue to be encour- I

1993 TLR p52

MAKAME JA

A aged. It is a necessary and progressive function. We must not be understood to

mean that judges should shy away from their function of construing the Constitution

which is their proper duty and legitimate province. But there must be occasion for

that. That is judicial power reserved for judicial situations. When we are moved we

move into judicial action and fulfil our responsibilities. Not B otherwise. We are not

knight errants.

To turn to the specifics now and we think they are hard:

Mr Butambala wrote to the Judge before whom he had appeared in the Criminal

Sessions asking for C his fees to be assessed in accordance with the existing law, Act

21 of 1969. He was not complaining. If he thought the maximum fees payable were

inadequate he did not say so. If he thought the law should be changed he and the Bar

generally would know what to do and where. He knows the fora available, and the

lobby. It would be perfectly alright for a Judge also, if he so feels, to D take

administrative initiative to have the fees raised.

In the present case the learned Judge, on his own, decided, without complaint and

before the benefit of learned arguments, to construe s 4 of Act 21 of 1969. `I intend to

construe s 4 of the Act No 21/69 E as modified . . . I will regard the paltry sums

mentioned in s 4 of Act No 21/1969 as void and modified . . . Set the application for

hearing on 27/7/90 and serve the above minute to the State Attorney and Mr

Butambala immediately.'

The italics are supplied by us to throw our view point into the sharp relief we desire.

Where was the F application the learned Judge was referring to? There was none!

And what if Mr Butambala had declined the invitation? We posed the question to

counsel and Mr Mussa suggested that by the look of things the learned Judge have

gone right ahead and do what he was intent upon doing.

G In the Sierra Leone case Mr Mussa referred us to, the point discussed above was

not directly in issue but we cull from the decision:

(a) The applicant must allege that a provision of the Constitution was

contravened in relation to him.

H (b) He must invoke the power of the High Court.

(c) That power of the court is a judicial power.

In our recent DPP v Daudi Pete (2) there were proceedings, a base, which contained

material from I which to hold, reasonably and legitimately, that what the

respondent was alleging was a viola-

1993 TLR p53

MAKAME JA

tion of his constitutional right, albeit inarticulately and without elegance. We have

no quarrel with the A relevant aspect of the decision in the Zimbabwe case of Bull v

Minister of Home Affairs (3) the learned Judge quoted.

The holding therein was that a formal petition was not necessary. The court did not

say that no step whatsoever was required to be taken by any party. What was decided

in Grace Stuart Ibingira v B Uganda (4) was that the court will not desist from

hearing the matter because of procedural irregularity particularly where the parties

accept that the court has jurisdiction. That is not to say that the court would vest

itself with jurisdiction in any event. The question whether a court has jurisdiction C

is not a question of procedural propriety. It is not a nicety; it is fundamental.

Section 5(1) of Act of 1984 was pleaded by Mr Butambala and relied on by the learned

Judge. We happily go along with Mwalusanya J that the provision deals with statutes

or laws existing prior to D March 1985. Act 16 of 1984 provides so. In the exercise of

its original jurisdiction the High Court may modify, adapt etc a law, yes, that must be

in the process of construction. To construe, as used here, is a term of art, which

implies a judicial interpretation of laws. It is not possible to do that unless there is a

proceeding, a legitimate occasion, and you do not have to `threaten' to do so in a

certain manner E and direction under your own steam, when no one says he is

bothered.

If one relies on s 5(1) of Act 16 of 1984 one has to wait until the matter arises in the

course of proceedings so that the court gets the opportunity to construe. Otherwise he

has to petition under F article 30(3) as usual. It would conceivably have been

possible to advise Mr Butambala to set the process in Motion by formally

complaining, but we are not in a position to pronounce on the judicial propriety and

desirability of that course of action either. G

We are of the carefully considered opinion, for reasons we have endeavoured to

indicate, that the learned Judge improperly raised the issue of constitutionality and

that there was no legitimately permissible occasion for him to do so. This is enough to

dispose of the appeal in favour of the H Attorney-General who did not think he was

drafted in as a friend of the court. Mr Mussa must be forgiven for adding that if the

Attorney-General was a friend of the court then he was a reluctant friend. We wish

to observe that before you can have amicus curiae you need first to have a curia gone

to. I

With respect, Mwalusanya J initiated his own cause and then sat

1993 TLR p54

MAKAME JA

A on it as a Judge. One may be tempted to think that he had made up his mind and

so the whole exercise of bringing Mr Butambala and the Attorney-General on record

and listening to their arguments was illusory. The approach was manifestly unjudicial

and emphatically undesirable.

B This appeal is allowed. The effect of this is that s 4 of Act 21 of 1969 is still good

law and in the books. It follows that the range of fees provided therein is still the legal

one therefore the payment of Shs 10,000/= ordered to be paid to Mr Butambala are

illegal and must be refunded, less the amounts C to be assessed afresh by

Mwalusanya J in accordance with the existing law.

We make no orders as to costs.

We want to add this: Learned counsel on both sides were of useful help. We did not

find the issues very easy and that is why had the judgment of this `curia' had to be

curia advisari vult.

D We do not now need to consider the useful arguments learned counsel advanced

on the remaining three grounds which we might have touched upon in the course of

considering the first two grounds.

E By way of post-script we desire to add that the fees payable under s 4 of the Legal

Aid (Criminal Proceedings) Act 21 of 1969 may be grossly inadequate and out of date.

We think something positive must be done, unless the public philosophy is that the

service advocates render under the F law are intended to be akin to the classical

dock briefs of some jurisdictions.

1993 TLR p55

A

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  1. Please can you give me the summury notice of Attorney General vs W.K.Butambala

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