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
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.
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 DTanzania, 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
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
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
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-
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
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.
A
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