20000305 TZCA Dar es Salaam

~------- AT A.RUSHA (OORJ'.M: CIVIL APPEAL NO. 45 OF 1998 BETWEEN THE JUOOE i/e HIGH COURT, ARUSHA i THE ATTORNEY GENERAL f o o o o • APPELLANTS AND N. I. N.. MUNOO NG 'UNI ····••o ■ oo~OOOO ■■ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania.at Arusha) (MaJ~~?s, J., Mehome 1 ~J !.1 And Rutakangwa, J •) dated 17th March 1 1998 in _9~,N?~~-3 of 19~ ,JUDGMENT RAMADHANI_,_,~: The respondent'i N. I. N. Munuo Ng_'uni, is an advocate of the High Court of Tanzania based at Arusha., On 4/11/1993 the High Court of Tanzania; Arusha Registry, assigned him six court briefs for a criminal session in Babati~ He did not accept them. So, the learned Judge in charge of the High Court, Arusha, suspended his practice pending a reference to the High Court. He filed a suit claiming a number of -t:1ings: that his suspension was illegal . -----. and that it should be tifted-, that the eourt should make a declaration that the Legal Aid (Criminal Proceedings) Act, 1969, Act No. 21 of 1969, (hereinafter referred to as Aot No. 21 of . 1969) is ultra vires Article 23 of the Constitution of the United Republic of Tanzania, 1977, (hereinafter referred to as the Gonstitution), and that he should be awarded damages. ·••• /2 1 He was successful in the High Court before a panel which had to and Duties consist of three judges since it was a claim under the Basic RightsL Enforcement Act, 1994, Act No. 33 of 1994, (hereinafter.referred to as Act No. 33 of 1994). The appellants filed a notice of appeal on 20/3/1998 ..and·. the respondent filed a notice of· cross-appeal on 27/3/1998, that is, seven days afterwards. At the hearing Mr. Kamba, Principal State Attorney; represented·· the appellants while the respondent appeared in person. The • appellants raised a preliminary f'bjection which-we heard but reserved our ruling to the present. We now give it. The appellants. claimed that the .notice of -cross-appeal.J>y--the . respondent ·was filed contrary to Rule 87 (2). Mr •.. Kamba submitted_ that the respondent was required to file a notice of cross-appeal after.a copy of memorandum of appeal by the appellants was.served on him and that he had thirty days in which to do soo Mr. Kamba contended that the respondent jumped the gun, so to speak. The respondent simply said that the moment he received-a.copy ... of the . notice of appeal by the appellants, he knew that. he was the respondent and, therefore, he could only file a cross-appeal. He pointed out that Rule 87 (2) does not bar a person from.filing a cross-appeal before service of a record of appeal and a memorandum ------------·--------- of appeal. He submitted that rules should not be used·to thwart · •.·····-subst@tial justice. -------. Mr. Kamba admitted that the appellants have not been prejudiceu in any way by the filing of the notice of cross-appeal before the respondent was served with a copy of the record and memorandum of appeal. Now, it is trite law that procedural irregularity should ••• /3 not vi~iate proceedings if no injustice has been occasionedo (See:_ Rawal v • .!:1C?,!!le,1?:1?a_ Hardwc:r~ £1968J EA 392; _!"~1:,1;:_j,i..!,~ Aru~ .Q2.~a]......§.,~_o~~ f· 1968_.7 EA 137; and p_ooper Mot,£_~~'?-~(1) L~.J..!.-~, .["1991J TLR 165.) So, this ground is lame. Then we agree with the respondent that rules should not be used to thwart justice. In fact a prominent judge in this jurisdiction, the late BIRON, J .. , said in General Marketing Co. -............------·--- -.--.--. procedures are handmaids of justice and should not be used to defeat justice. To clinch it all, the thirteenth Amendment to the Constitution has promulgated Article 107A which provides, in sub-article (2)(e), as follows: 2) Katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzingatia sharia, mahakama zitafuata kanuni zifuatazo, yaani: a) 0 0 0 b) 0 •• c) ooo d) 0 0 0 e) . kutenda hald bila ya kufungwa kupita kiasi na masharti ya kifundi yanayo- weza kukwamisha hak.i kutendek.ao . .. ' . . . That can be translated as follows: 2) In the determination of civil and ·criminal mat'ters according.to law, the courts shall have regard to the following principles, that is to say: .,,./4 a) 0 • •. b) •O• c) • 0 0 d) eoo e) administering justice without being constrained unduly by technical . requirements, which ·are capable of preventing justice from being doneo In this case we are totally_convinced that apart from affording the appellants a win by knock out, the appellants are not·in any_ way prejudiced and sustaining their objection would only deny the respondent an opportunity of cross-appeal. Rule 87 (1) and (2) provide as foilows: 870 - (1) A respondent who desires to contend at the hearing of the appeal that the decision.of the High Court or any part of it should be varied or reversed, either.in any event or in the event ■ ,o·-_,,_~~1.-•-.-... ,,a:.-t,.,,._r.._..,_.,,,.,___.,_.._.L•...-rb... _._,..._..__,..,._,.,...,._-.-...... , _ .9.f.-~~J;>P.e<;_l _~&_,_c:~l<?.\~~d. in whol~ 2.!...-~-Rar!, shall give notice to that effect 0 0.:. 0 (2) A notice given by a re?pondent under this Rule ooo shall be lodged in quad-· ruplicate in the appropriate registry not more than thirty days after service on the respon~ent of the memorandum of appeal and the record of appe?U• (The emphasis is ours.) It is clear to ·us that there are two pcssibilities under this Rule: One, a party wants to appeal but is forestalled because the opposite party or parties has/have filed a notice • 0 ./5 • of appeal firsto So, the only venue open to him is to file a cross-appeal. In.this case Mr. Kamba conceded that the respondent was aware of the notice of appeal of.the appellants and so, he could only file a cross-appeal. The second possibility is where a party- is _not intending to appeal at all but is wary of the ' appeal of the other party and is afraid of the consequences of the success of that appeal, in whole or in part, so he files a I cross-appeal. It appears to us that in the first instance, the party need not wait for·the memorandum and record of appeal to be served on him. His cross-appeal has not been prompted by the appeal of the other partyo However, a party in the second category.needs to know the grounds of appeal of the intended appellant' before he files his notice of cross-appeal. For such a person the Rule provides that he files his notice of cross-appeal not later than thirty days after service on him of the memorandum and record of appeal. It is our considered opinion that the aim of the Rule is not to prevent the first type of ~n intended cross-appellant from filing·his notice of 0~css-appeal but it protects the intended appellant from being ambushed by the second type of an intended cross-appellanto Hence the Rule prescribes this period of thirty days as the outermost time limit for a person in the second category to file his notie~-of cross-appeal. Our opinion is that that rule does not prohibit a person to file a notice of cross-appeal before he is served with record and memorandum of appeal. For the reasons given above we dismiss the preliminary objectiono ••• /6 \,, Mro Kamba had seven grounds of appeal and decided to combine the first two. In grounds one and two th~ complaint was that the learned judges·erred in holding that the first appellant had a duty to give the respondent a right of heqring before exercising his powers of suspending an advocate under section 22 (2) of the Advocate Ordinance, Cap 341 as amended by Act No. 10 of 1990 (hereinafter referred to as the Ordinance). Mr. K~ba, in our opinion, argued in the alternative: first he submitted that there was no need to give a right of hearing under the Ordinance and in any .case the respondent was accorded that right by the first appellant. The learned Principal State Attorney reiterated the argument at the trial that Exh. P. 3, a letter from the first appellant to the respondent, was a notice to show cause and that the respondent ignored the opportunity to be heard. The respondent said that he gave evidence in court and was not challengedo He submitted that Exh. P. 3 was not~ notice of hearing but it was a threat of administering an unspecified disciplinary action,. Section 22 (2) (b) of the Ordinance provides as follows: Any Judge of the High Court shall have power to suspend . any advocate in like manner /i.e. - from practicin_e7, temporarily, pending a reference to,' or disallowance of such suspension by the High Court. Does that paragraph dispense with the principle of natural justice of ~---.,..--~...,.,._,._.. audi alteram _ __ __ partem, that is, hear the -other side1' . ._... _,...__._ We think not. Admittedly, the action of a High Court judge under that •.•/7 paragraph is purely interim and awaits the decision of the High Courto It nevertheless affects the human rights of an individual. We agree with the learned trial judges that the current trend and tempo of human rights demands that there should be a right to be heard even for such interim decision. In fact, ·nowadays, courts in some jurisdictions, like the Eire Republic, demand not only that a persori be :given a right to be ·heard but that he be given an ua.dequate opportunity:, to be heard. (See !11.!3 I,z::!:~~-,_s;~~tu~i_oR, · by J.o M., Kelly, 3rd Ed. by Gerald Hogan ~nd Gerry Whyte (Butterworths, 19~) p. 350). We. also agree with the judgment of McCARTHY, Jo in ~¥~-"2.~ (Irish Pharmaceutical U~) ~:plo.Y,l!!ep,!_ A,;p_p__ea_ls TriblJ.!l,!t {i98'J7 ILRM 36 that: · ; • •< it :i,s a.. fundamental r~q1.1il'.eme~~ of _just ice that a 'per9on or property should not be at risk _· - .,, . :· jt· ..: l . . . . . without the party charged being·given·adeqUB;te• opportunity of m·eeting the,. ·claim, a1;,·,,identified and pursuedo If the proceedings derive from · · ·:- t5tat.utJ~:: then, in the absence of any set Qr . yfixed procedures, the relevant authority must create and carry out the necessary procedures; if the set and fixed procedure is not compre- hensive, the authority must supplement it 'in such a fashion as to ensure compliance with .constitutional justicer. We are aware that the !:~.=!--~le.~~--E~~, like all legal rules, have exceptions. For instance, the whole object of censorship legislation would be defeated if a censorship board would be required to give adequate opportunity to be heard to a publisher who could not be readily traced (_IE_ish Famil:[__Plruyiing }.SfEf!..C..~.E:-t ion v 0~ {i97:Jl IR 295). But this case was not in that category. • •./8 - u ,, To come.back to the appeal, was the respondent given an opportunity to meet the claim of the first appellant? Was such opportunity given in Tuch. P. 3?. Was it notice to show cause and the respondent let it go? The first appellant wrote to the District Registrar Exho P. 3 saying: Following the discussions we had in my chambers yesterday, please write to Mro Munuo, Advocate to inform him t4at I have seen his letter to you and .................. I have - -- satisfied ..,. __ ..,., ..... _._.,....._ ... ,. myself that he has no ....___........... good reasons for not taking the dock briefs assigned to him and that refusal by him to take them will result in immediate disciplinary action against him under Cap ,341 of the Laws. ~-~~.!iA~~ .!3J-J;.EJ-f;t,_~9~eptanc.~-3- t ?~m2!.!2~. (Emphasis is ours.) We have no flicker of doubt in our minds, and we agree with the respondent., that this letter was nothing but an ultimatum. The first appellant had already made up his mind to take disciplinary actiono He was not even in a position to accommodate a hearing, let alone giving that opportunity. In' the third ground of appeal, the appellants averred that the learned trial judges erred in finding that the suspension order violated Article 13 (6) (a) of the Constitution: When the rights and duties of any person are being determined by the court or any.other agency, that person shall be entitled to a fair hearing and to the right of appeal or other le.gal remedy against the decision of the court or of the other agency concerned; •o ./9 - 'j - ... I We do not think that this ground should take much of our time,. Entitlement to a fair hearing includes the principle of ~~i-a?:.,t~a.!:! .E,_~~te~. So, that principle is part of the Constitution .. Since we have found that the suspension order violated the principle of ~~d! ·-·---------~--=-~ alteram partem, then, it has also violated the Constitution. So, this ground of appeal also fails. In the fourth ground, the appellants sought to fault the learned judges in holding that section 4 (2) of Act No. 21 of 1969 has v~olated the basic rights of the respondent secured under Article 23 (2) of the Constitution. Mr. Kamba conceded that a maximum . remuneration ceiling of shs. 500/= imposed by section 4 (2) is lowo Nevertheless, he argued that it is not·necessarily unconstitutionalo The respondent rne:.:ely acknowledged the admission of Mr. Kamba that the amount is low and added that that was so· even in 1993 .. Admittedly, the Act was enacted in 1969 and at that time shs. 500/=· was substan.tial. But.at the present time that amount is peanuts. As such we entertain no doubt at all in our minds that that amount obviously infringes Article 23 (2) which provides: Every person who works.is entitled to just remuneration. -- ....-- -- - --- __ Now, the Pocket Oxford Dict:ionary defines the word 11 justn as: ----- --·-·-·""'-~~-- .. . Equitable, fair; deserved, due; well-grounded; right in amount; proper; exactly. We are of the considered opinion that that definition speaks for itself and.it needs no elaboration on our part. A remuneration of shs. 500/= for defending a serious criminal case like murder, does riot compare with any of the above-quoted adjectives • ••• /10 •- ·1v i We agree with the learned judges that section 4 (2) of the Act No. 21 of 1969 infringes Article 23 (2) of the Constitution. We, therefore, dismiss this ground of appealo Of course, ther_e is what is to be done to U ..2:'.: offensive subsection. The learned judges struck it outc Ther0 is no ground of appeal challenging that though Mr. Kamba addressed us on it. We shall deal with it shortly. In the fifth ground the appellants sought to fault the learned judges for holding that the second appellant was to blame for his negli_gence to take steps to amend section 4 (2) of Act No. 21 of 1969. Again Mr. Kamba conceded that the Attorney Gene·ral is duty- .bound to initiate amendments but argued that the respondent has also an obligation to draw the attention of the A.G. to pieces of legislations needinG revisiting. The respondent submitted that the' A.. G. is the principal legal adviser to the Government under Article 59 (3) of the Constitution and contended that it was his duty to amend the offending section,, Their lord.ships had this to say in their judgment: In actual fact a number of repeals and amend- " ments of the law have been made since the --···· · --· ---------.c.ommen~-~.ment of Act 16/84. ·- .... - . - ·- But nothing has been done to the impugned provision in ord-er - to bring Act 21/69 into ·conformity with the · basic rights provisions of the Constitution. 11here being no evidence that the Attorney General has talcen any steps in that direction, the reaso.rie,b:!e inference is that he has been remiss in his duty and a charge of neglect, . not negligence 9 has thus to sticko For the sake of clarity we have to point out that Act 16/84 referred to by their lordships is the Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984. That Act gave the Government three years in which to bring existing laws into conformity with the basic rights provisions of the Constitution and thus stalling ru1y action in that period of time. We are at one with the learned judges and, we wish to add, that - -- ... this Court prompted the A.G. into action in Attorney: Geni:ral v. W.K. "' ---- ~ta~¥~• {!i99'j/ TLR 46 which dealt also with section 4 (2) of Aet No. 21 of 1969. This Court said at p. 54: By way of post-script we desire to add that the fees payable under s. 4 of the Legal Aid . (Crim:i.na.1 Proceedings) Act, 21 of 1969~ may be grossly inadequate and out of date. We think' something positive must be done C, • • This Court said that on 14th June, 1991, yet up to 9th Novomber, 1993, when the cause of action in this matter arose • .8- period of almost thirty months, nothing was done by. the P... G.. In that app.eal~ · just as in this one, the A.G. was ve_ry ably represented. We, therefore, find that the learned 'judges were justified to hold that the charge of neglect was correctly placed at. the door of• the second appellant., ·\rJe· cannot fault them. This ground, too, fails., ----- The sixth ground was that the learned judges erred in holding that the reputation of the respondent was injured by the wrongful acts of the appellants. The learned judges said: i., In relation to the first respondent, we take it Linjury to repubatioy to have reference to his failure to give the petitioner a hearing and so his decision to suspend the petitioner from legal practice; and in re- lation to the second respondent we understand it to have reference to his failure to have section 4 (2) of Act 21/69 amended approP,,:. riately. Both Mro Kamba and the respondent reiterated their submissions for grounds one and four. However, the respondent added, and correctly so, in our opinion, that to an advocate with a blameless record for the sixteen· years of practice, an illegal suspension is_ .. obviously injurious to his reputationo We agree with Mr. Kamba that the second appellant has not.in any way injured the respondent. The neglect to amend section 4 (2) of the Act did not in any way injure the respondent;s reputation. So~ . we -have only to consider the first appellant .. We agree with the learned judges that: We have come to the conclusion that this -·--------.CO.!!JP.;!-!3-int has substance. It is certainly ;f-gr·~-a£ an inflict ~o-~- 'ha±m·--on-·t.he .... reputation of an advocate to call him undisciplined, as it was done in the !1,c:J~ article, o.. Mr. Songoro L'fearned Senior State Attornei/ contends that the~e is no ~orroborative evidence that the petitioner has suffered such injuries, probably for- getting that a court is entitled to believe the word of a complainant and to apply common sense. • ••/13 i However, the learned judges made it abundantly clear that tiupon the evidence it cannot be held that the first respondent was behind the publicity given to the suspension order• 1 • Nevertheless, they ..----~ found it as a fact that the Majira newspaper published it and their . iordships were satisfied that 0 the suspension was bound to be known by the members of the public 11 • But, we ask, would that have injured the respondent 1 s reputation? For the avoid.ance of doubt, we reiterate that the learned judges were emphatic that the. first.appellant was not behind the publ:ication in the ~~ newspaper. We agree with their lordships, that the public was bound to know of the suspension. However, the public would only have known that the respondent was suspended because he refused to take up dock briefs protesting the payment of shs. 500/= per brief. We do not think that that would have injured his reputation even though the suspension was illegal. What injured the respondent's reputation was what ~jira wrote, that he was undisciplined. That was not the work of the first appellant. Thus even the first appellant did not.injure the respondent's reputation and we, therefore, allow this ground of appeal. The last grou.vid was that the learned judges erred in law in their assessment of special and general damages. Mro Kamba pointed out that special damages have to be specifically pleaded and proved · and that neither of the two was done. Mr. Karnba said. that the learned judges accepted a document pr9duced by the respondent as evidence that his ~come was shso 300,000/= per month (Exho P. 4). The learned Principal St~te Att-orney pointed out that the respondent hL~self conceded that Exh~ P. 4 wa~ not signed by its maker and there- fore, it should not have been relied upon. - The respondent, on the other hand, -{ -specifically pleaded in paragraph 17 of the Amended Plaint. The respondent also said that a lawyer is entitled to more than what was awarded him. He referred us to the decision of this Court in Grace Ndeana vs. Consolidated Holding Corporation, Civil Appeal No.76 of 1999 (unreported) where this Court awarded a Head Teacher of.a Primar~ &Qhool Shs.50,000,000/= for defamation4 In paragraph 17 of the Amended Plaint the respondent merely said: That the petitioner's reputation has been injured by the respondent act or omissions and he claims damages amounting to T.Shs • .100,000,000 Million (sic)• He did not say whether what he claimed was special or general damages. We agree wit~ Mr. Kamba that special damages have to be specifically pleaded and they were not in this case, ev.en loss of earnings as an advocate. The learned judges were, of ~ourse, aware of this and they addre.ssad themselves on the matter. This is what they said: The omission to plead the damages specifically is however, not fatal. The rule has been judieially, evolved, and we consider it a sensible one, that a court should take libertD. approach to rules of practice and procedure wh~ basic rights an,P. freedoms are invoked, so as to give to the eomplainant a full measure of his rights; see Jaundoo Vs. AeG• /1,9.7J,'J AC 972 at 983; and Reve Longwe and Others Vs. A.G. and Another, Misc. Civ • APP• No. 11/93 of the Malawi High Court (unreported) •. I ,_, The rationale is that since the rights guaranteed by the Constitution are effectively enforced, and that to decline to examine the merits of a petition on the basis of a procedural technicality would be an abrogation of that duty. -We wholly subscribe to that Vi'3w. We have not been given any reason, let alone a good one, and we do not see any, why we should di.ffer from our learned brothers in the view they have wholly subscribed to. But even this Court has been very liberal on the question of pleadings in respect of damages. We have he~d in .9-?.9.t~:.. .!!o~½?E_ .92.£P.?rc:}.J-..£1'.! J,t~.!.-!.!2'!2..~~/Ar1;1sha Oc~Y.l?~~n_a]•. 1:I!:.<;]-_1:_1:...E~~J~, [f99<jl T.L.R. 96 at Po 100 that it suffices in the case of general damages merely to aver that such damage has been suffered. We reiterated that in .D.r.:.~.:_~l~:L.ShabJ:iay--..!!. Tan_E.a...,].oh~E-~!l~!:!., Civil 0 Appeal No. 40 of 1997 (unreported). It is abundantly clear from the above quoted passage that ?.!1..1..I ..l?i~ne:r_~J....2.':!!1~~~-~~~~ ~~-b.J-~~~- .~1!!1ere .st~~~~__pra;y.~~-~..!:,~C:.+.<:.~~11 and this is what has been done in this case. (Emphasis added.) by a mere statement or prayer. But since this is a claim'on basic and fundamental rights, from above cited persuasive authorities from sister jurisdictions, we are duty bound to admit a mere state- ment and prayer in asking for specific damages, like loss· of earnings from the practice as an advocate for the 17 mont_hs the respondent was suspended a It is true that the respondent produced a document in support of his monthly income, which was not signed by the auditor, and so, it should not have been acted upon. However, we agree with the learned judges' opi.:i:iion that an income of shs. 300,000/= per month for an advocate is rather on the low sideo So we fail to fault the learned judges on that scoreo The respondent had six grounds in his cross-appeal but he decided I to abandon the first four grounds and argued the last two, that is, grounds five and six, In ground five he averred that shs. 5 million was not a fair compensation and that damages for injury to reputation should be enhanced. He asked us to consider his arguments in reply to ground five of the appeaL \ Mro Kamba also recapitulated what he had submitted in his appeal and co_ncluded by saying that he was leaving the issue of ~eneral damages to the Court. As we have already upheld the learned judges in their finding of injury to the reputation of .the respondent, we have to consider whether or not shs~ 5 million ic adequate compensation. In G5ace_Ndean~~ th5 app~llant borrowed some money from the National Bank of Commerce a.-r:id when she failed· to pay, the respondent I s agents went arounci 3:::ii:thl.a--town _j_n __ R,__ _'(~ _saying i:.½-~9-.E.~J:~~-':!3.~.L.l~'-Y.-~~2.~ -. -... ~ ··- ....... _.:, matanga' . while they were ac.vertising .the auction of the mortgaged· _. ,...,.,. 1 houseo Ti1:i..s Court awarded shs. 50 million to the ~ppellant, a .. __ ~~irnary Sr.hool Head Teacher, a;-; compensation for defamation. Mre Kamba properly pointed out that in Q!a~-e~~ defamation on the part of the •respondent was provedo This.case, therefore, is distingui0hable from 9.:.ac~. Ndeana as we have found that the action of the first appel12,nt did not injure the respondent 1 s reputationo ' ( Even then we are prepared to find that the seventeen months .suspension did cause mental pain and suffering to the respondent. We think also that a compensation of shsa 5/~ million leans more on the low side since the respondent has been an advocate based in Arusha and Moshi for sixteen years and has a family. So, we think a compensation of shs. 10/= million may be adequate in the circurns- tancese So, we allow ground five of the cross-appeal to that extente In.ground six of the cross-appeal, the respondent was claiming that the order of stay of execution granted to the appellants in their Civil Application Noo 4_ of 1998 perpetrated his pain and sufferingo This ground was dropped because the respondent conceded that he·ought to have sought a reference from that order of a single judge and that the order should not be a subject of cross-appeal because it was not a decision of the learned trial judgesa Now, we have to go back to w)::lat should be done·to section 4 (2) of the Act No. 21 of 1969 once we have upheld the learned judges that . it infr~nges Article 23 (2) of the Constitution_o We ask this in view of section 13 (2) (a) of the Basic Rights and_ Duties Enforcement Act, 1994 .. Subsection (2) and paragraph (a) of that section provides as follows: (2) Where ?-0 applicant: alleges that any law ·--··--·----· ·- ·-·-·-- ..... ..made__of act_ion taken by the Government or other authority abolishes or abridges· the······· basic rights, freedoms or duties conferred or imposed by sections 12 ·to 29 of the Constitution and the High Court is satisfied that the law or action concerned to the ·extent of the contrav.ention is invalid or unconstitutional then - (a) the High Court shall instead of declaring the law or action to be invalid or unconstitutional, E..8-....Y~ .!."ti!.___ .P.2V:.~!_~ c!!_scret ion ~ ,!3-.,E,P~ri':.te C8:_~ to allow _Parliament or other legislative authority concerned, as the case may be, to correct the defect in impugned law or action within a specified period, subject to such conditions as may be specified by it, and the law or act ion impugned shall until the correction is made .or the expiry of the limit set by the High Court which ever· be shorter, be deemed-·· to be valid. (Emphasis ~dded.) . ·.,.. •·· . The learned trial judges considered that section.and had this_ to say in their judgment; Section 13 (2) (a) is an extremely-strange .. and curious provision, to put it mildly. It is certainly pregnant with problems, some of which are fundamental ••• We consider that provision as an absurdity. It is impossible for the court to apply it .. with any judicial candour. We have, there 7 - ---.---- ·- ----fore--;·-t-o--invoke-t-he -principJ._~.Qf harmoni- zation, like the learned judge ~~~-~~--th;-··-------~--------------- Mtikilai s case. 'vJe also have to invoke the. principle that funda~ental rights provisions· should be construed as to make them meaning- ·ru1 and effective, Jike it was done by the · Supreme Court of_Zimbabwe in Salem v. Chief· Immigration O.fficer and Another {.f99!f} 1 LRC 343. - 'l'j - With that we must proceed to declare that section 4 (2), and E.<2! the whole Act, is U."1.constitutional, and nullify the same to the exte.nt that it provides. for unjust and unfavourable remuneration to the advocates who render services under the Act., We'so doo We hav~ to reiterate what we have already said earlier that of the seven grounds of appeal by the appellants,. and especially second appellant, the Attorney General, there is none·soe~ing to fault their lordships in making the above declarati~n. Was that an oversight? But could the A.G. overl~ok such a stark declaration? Can we make an 11adverse inf erencen of that omission, · that is, silenee signifies agreeme~t with the declaration'? However, Mr. Kamba, in a by-the-way m9od~ when arguing ground three, that is, contesting that. section 4 (2) of ;A.ct No.•. 21 of 1969 · contravenes Article 23 (2),, -said ' 1It was net pl'oper for the learned judges· to nullify that seet'ion 4 (2) ••• they should have. given directions to app!opriate authority .. u 11 ., Sinee the deelaration ·.... • _._ goes·.against the unambiguous,. provisions of ·13 (2) of Act No. 33 of we are.'duty bound to address ito Our· first observation:,~ ,, that that subseetion gives the court ·11 power and discretion. in appropriate ·case to al.lawn the relevant . •---• ..__ • ___ _,_ "'w •••• • • organ to correct ·the· defeet i.mp1.lgned~ .. ·.Tb:e provisien does net oblige the court to refer the matter to·the·releva:nt organ in all.cases but leaves it with •1discretion11 and then ~nly in "appropriate casei!.,··: Now, in the case of section 4 (2) of .Aet ..No. 21 of 19691 our opinion is that it was not an 11 appropriate •ase11 te refer the matter to the /20 '! . . . . - 20 - AoG• after the same had been referred to him in .t~t~~cg.a~ case, thr.mgh not expressly, thirty months· earlier and after .the expiry· of the three·years period of grace under the Constitution . .( C~nsequentiu, ..Transitional and Temporary ·Provisio~) Act, .1984. But· :i.s -chat subsecti'on roally necessary or is it 0 oxtremely strange· and curi~usH f'lr 11 absurd11 as their. lr:irdship found? · We have no doubt in our minds that that provision·seeks tri cir~mnseribe the powers ·of the High Court in dealing with.issues of fundamental rights. This might have been an overreaction-on the part of the executive after the decision of· the High Court in ~ .. v_~_evo Chri~topher Mtikila [f99rJ/TLR 3e But, with respect, the· courts have generally, and_ particularly in that case, demnnstrated maturity in judicial restraint.. s,,, we endorse what our learned brothers~said about principles of harmonization and that of canstruing fundam~ntal rights provisions 6() as·to·make them meaning- ful.and effective. We would add two other reasons for departing· f?-em section 13 (2) of Act Noe 33 of 1994 •. . ·, .... It was decided in Smith_ Vo East Elloe Rural Dis.trict Council .. ... ,:. . :· . - . .--·; . .t595§J AC,. ?.36-~at 750-'1 that courts will .. not lean t9wards a Af!'nstruc-. .. - -: . tinn. whio~ill:··o~ the.lr'"jili:·isdictiAn., .. tpe>':gh they mnst 1 of ~e,- ··· ·- - . ~..- . - ··-··· .... '. . . ·... give effect tb plain ·w':lrds·•. That was cited with appreval "in P.£0 Kiambuu v. R and Othe~ · ··.fp!aOJ EA 109 at. 114: . ··~- ... My Lords,>I thirjk that anyone bred in the tradit~n-·of t~: law is likely to regard . ... .......... . with little :PYIIIJ??.t1;Iy_· . ... -----.. ... legislative ·-provisions for ·ousnng·the·__ jurisdict~n of. the -oom:'t, ..... __ that th~ eubject·may be whether in ~rde:1' deprived altogether of remedy or in Order·· u•/21. 21 - .. I that the grievance may be remitted to some other tribunal. But it is our plain duty to give the words _of an Act their proper meaning-~· Those observations are backed by the Thirteenth Constitutional Amendment of February 2000, intr~ducing Article 10?A· (1) and (2) (a), which pr~vide that:· ( 1) Mamlaka ya· utoaji haki katika Jamnuri ya Mui,mgano itakuwa mikononimwa Idara ya . . . . .. . . Mahakama na Idara ya Mahaka.ma ya Zanzibar na ..kwa hiyo !1-.~a chomb_o c_ha Sei:~~ ____ ~ a cha Bun@_ la Zanzibar_.,_ ~_.._ Baraza _].a .~!....~.El1.! ~a ____ .~ kitakachokuwa - ---- na kauli ya ............... E.1~ish..9_ _k,at~!- utoa_ji haki .. (Em!)hasis is ours .. ) . (2) (}.lrea~y cited at P~ 1/ .(a)· -... o • . . · (b) · kutochelewesha haki bila sababu ya kimsingi; That can be translated as foll. ·.:3~ · ( 1) The -authority of a.dmini..stering justice in .. .the Vnited Republic is vested in .the Judiciary and the Judiciary of Zanzibar, ...... ,.. •,,- .and., _ therefore, . . !1.2~.•0E.fa.~~he Governmen_! · or of the Parliament or of the House of ... _?.~rese~r':!,~s of Zan~j.bar shall have _the·· ~final_.?!.~ in t.~e ~~!:_?-stration_;?f ju~.!.• (Emphasis is ov.rs.) (2) /JJ.ready cited at Po )j (a) • 0 0 '•• .. •.,•. ·_ .... . (b) not to delay justice without a good reason; ...../22 ,.,,.. , f t So, when section 13 (2) of Act No. 33 of 1994 requires the High Court to stop short of declaring that an enactment. or an action is invalid or unconstitutional .and demands the court to refer the matter to Parliament or another relevant authority to remedy the wrong, ,it is, in our considered opinion, giving ''the . final say in 'the administration of justiceu to that other.organ. And.that is .contravening the express provision of the Constitution. Of course, compliance with the provisions of Act 33 of 1994 would also cause delay in rendering justice and that is also contrary to the Article quoted above. This is beoause time-will elapse between the decision of the court and the act~on by the relevant organ and also during all this time ·the offensive law or a.c~ion is allowed to go on. We dare point- out that. justice would be delayed for no apparent good reason.· However,. if we uphold the. de<:ision of our learned brothers - . . to strike . .out· section 4 (2) of Act No., 21 of .1969, then we. are go:ing to seal the abolition of any sort of remuneration to advocates for ·court briefs. We dare .say th.at the High ·court . erred in .making that deGision. We agree with their lordships that the whole of Act No. 21- of 1969 ~an.not be declared unconsti- tutional. But on the same reasoning we disagree· with them in. declaring the whelk of section 4 (2) uncons'titutional. What contravene the Constitution are only the amounts stipulated. But let us see what exactly section 4 (2) provides: (2) . R·emuneration_ ~-a!able under this section shall not be less than one hundred and· _'!=!!.e~t_x shillings nor more than .three . ~'!!~ shillings in respect of each ..../23 - 23 - proceeding~ or in respect of each accused where the certifying authority certifies that accused persons Jointly tried should be separately represented: Provided that in.the case of a proceeding before the High Court the Judge hearing the proceeding and, in the case of a proceeding before any other court, the Chief Justice, may~ for special reasons, regard being to the complexity of the proceeding or the duration thereof, authorize the payment of a_ higher remuneration not- - exceeding .fi,_!~-~..':!.!.9-E..e_~ shiilings in respect of each proceeding, or ·in respect of each accused_ person,. as the case may beo· (Emphasis is ours.) So, we strike out the amounts 11 one hundred and twentyt:, 1ithree hundredii and llfive hundred:' .. - However, since court. briefs ·w.ill -- ·---. ______ · ~o~t:i.nu.e .. to .. be assigned,· we cannot_ leaye-a vacuum. . . We have to provide _for stop-gap remuneration for court briefs .. to ..advocates until such time as the office of'the Honourable Attorney General deem it fit to revisit that sub-section. What criteria we shall use for fixing, at ·1east the maximum, --------~ -~-- amount of feeii has· ·e5c"erc.ised ·:our711inds- a--~eat. d.e!:3-1.___ I_t _i_-:3 __9lear from section 4 (2) quoted above that the fees payable for a dock brief is between shs. 120/= and shs. 300/=. The payment of shso 500/= is only for extraordinary cases.· The fact that that amount is now the st~ndard payment for court briefs is a clear testimony, on the part of the Judiciary, that the stipulated fees are extremely low. So, fo ameliorate the situation th_e •• ,,/24 ,:..1' com:t a,.d:ni!".ist".i..~ation he.s been. gi,:iri.,g the maximum amount unqer tne ' current lr-.w 1 shG .. 500/:::~ whicJ, 1 ·f;oc,; we have already said is grossly-· --- ·- - . .... . ... -- ~- --·--·- ---- ..._ . 5.Eadequate and tmcon.stitu-c:i.onc:i..,, When the Act was enacr:.:2,~. ·1.n 1'96? shs. 500/= was a subst:2..i.'-t:i.al 0.mcnmt, At th.;.;: moi·,.,.-r,.t a judge on duty outside his/her staticn get$ a. per diem of shso 1+0,000/==c, tJe have taken that a trial would norma.J.J.y take two days and poss:lbJ.y three, everything else being J.n ;:i:i.-dcn·~ Bo ,,,e consider giving a."1 advocate the per diem of a judge for. two and a half days" that is, shs .. 100,000/= per a dock brieL However, that is a substantial amount of money which h.:.{s Eot been budgeted for. So~ the new fees shall be payable from .:-:uly· 20020 For the avoidance of doubt 1 the respondent was not s8ek:LJ1g u relief (lll this j_ssue · because he had not taken up the court 01~:Lefs assigned to hj_m m1:i..ike the _Buta~1e_al,:=: case. So, there is no-f:. such urgency of reliefo So. we d.;_,,.:-;:~ "'R all thG grounds of appeal with costso We allow also with costse Di\.:~fiD at DAR E,S dALJ:.~;'. this 05 day of MARCH,. 2002.,_ .JUSTIC;i~ OF !~PPEAL ,. . ,. . . . .u-r---•----·"' AoS oL ~ :tL~Jvif,.DHJ\ NI - .. ·. K.S ,,LLUGJ;.,'(INGIRA JUSTICE --- OF APPEAL -~-,.~- T. rcrtify that this i,Y td -c.rue copy uf the original.. \