KUKUTIA OLE PUMPUN AND ANOTHER v ATTORNEY GENERAL AND ANOTHER 1993 TLR 159 (CA)

 

KUKUTIA OLE PUMPUN AND ANOTHER v ATTORNEY GENERAL AND ANOTHER 1993 TLR 159 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CIVIL APPEAL NO. 32 OF 1992 B

23 July, 1993

(From the judgment and decree of the High Court of Tanzania at Arusha, Munuo, J.)

C

Flynote

Constitutional Law - Suits against the Government - Statutory provision requiring the

Minister's consent to sue the Government - Whether constitutional - Section 6 of the

Government Proceedings Act 1967. D

-Headnote

The appellants sought to sue the Government. They applied for the Minister's consent

to sue the Government as required by s 6 of the Government Proceedings Act 1967

but got no reply. They then E called upon the High Court to rule on the

constitutionality of that provision of the law; it was null and void as it contravened

the Constitution of the United Republic of Tanzania. The respondents did not wish to

file a written statement of defence to the claim; instead they lodged with the Court a

preliminary objection that the suit was incompetent for want of the Minister's

consent to sue the Government. The learned Trial Judge ruled that section 6 of the

Government Proceedings Act 1967 F was not unconstitutional and dismissed the suit

as incompetent. The appellants to the Court of Appeal.

Held: (i) Section 6 of the Government Proceedings Act 1967 violates the basic

human right guaranteed under arts 13(3) and 30(3) of the country's Constitution, of

unimpeded access to the Court to have one's grievances heard and determined there;

G

(ii) In considering any act which restricts fundamental rights of the

individual, such as the right to free access to the Court of law in this case, the Court

has to take into account and strike a balance between the interests of the individual

and those of the society of which the H individual is part;

(iii) A law which seeks to limit or derogate from the basic right of the

individual on grounds of public interest will not be declared unconstitutional if it

satisfies two requirements:

(a) that it is not arbitrary; and

(b) that the limitation imposed by such law is not more than is

reasonably necessary to I achieve the legitimate objective;

1993 TLR p160

A (iv) Section 6 of the Government Proceedings Act, 1967, as amended by

section 6 of Act No. 40 of 1974 is unconstitutional because it violates the basic human

right, guaranteed under arts 13(3) and 30(3) of the country's Constitution, of

unimpeded access to the Court to have one's grievances heard and determined there;

(v) Section 6 of the said Act is not saved by art 30(2) of the Constitution

because it does not B meet the two requirements;

(vi) In terms of art 64(5) of the Constitution of the United Republic of

Tanzania s 6 of the Government Proceedings Act, 1967, as amended by Act No. 40 of

1974 is void, and is accordingly struck out for being unconstitutional.

Case Information

C Appeal allowed.

Cases referred to:

1. The Director of Public Prosecutions v. Daudi Pete [1993] TLR 22.

2. Peter Ng'omango v. Gerson M.K. Mwangwa and Attorney General,

[1993] TLR 77.

D 3. Himid Mbaye v. The Brigade Commander [1984] TLR 294.

4. Shabani Khamis v. Samson Goa and Another, High Court of Zanzibar,

Civil Case No. 18 of 1983.

5. Khalfan Abeid Hamad v. The Director of Civil Aviation, High Court of

Zanzibar, Civil Case No. 20 of 1986.

E A. Mughwai, for the appellants.

Mrs. A. Sumari, for the respondents.

Editorial Note: Section 6 of the Government Proceedings Act 1967 has since been

repealed and replaced so as to conform with this judgment: Government Proceedings

(Amendment) Act, 1994, F Act No. 30 of 1994.

[zJDz]Judgment

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

G The appellants in this case sought to sue the Government in the High Court to

recover damages for trespass assault and conversion. The plaintiff alleges, among

other things, that the necessary fiat or consent to sue the Government had been

sought but was withheld. The requirement for consent H to sue the Government is

imposed by s 6 of the Government Proceedings Act 1967 as amended by Act 40 of

1974 (hereinafter to be referred to simply as s 6). Upon consent being withheld,

therefore, the High Court was called upon by the appellants to rule on the

constitutionality of s 6, and to hold that that provision was null and void as against

the Constitution of the United Republic of Tanzania.

I The respondent Republic did not wish to file any written state-

1993 TLR p161

KISANGA JA

ment of defence to the claim; instead it lodged with the Court a preliminary objection

that the suit was A incompetent for want of the Attorney-General's consent to sue

the Government. The case was then adjourned, upon application by Counsel, for

written submissions after which the Court (Mrs J Munuo) ruled that s 6 was not

unconstitutional, and proceeded to dismiss the suit as being B incompetent. It is

from that ruling that this appeal now arises. Arguing the appeal before us were Mr A

Mughwai, learned Advocate, for the appellants, and Mrs A Sumari, learned State

Attorney, for the respondent Republic.

In the course of hearing the appeal, and during the submission by Mrs Sumari, some

doubt arose C whether consent to sue had, in fact, been sought and withheld as

claimed by the appellant's Counsel. However, this doubt was resolved when Counsel

for the appellants furnished the Court with documentary evidence that consent was

in fact sought and refused. Upon receipt of this information D Mrs Sumari stated

that hitherto she had been acting on wrong information sought from and supplied by

the Attorney-General's Chambers, Dar es Salaam that the appellants had not applied

for any consent to sue the Government. She added the because of such

misinformation she did not E address the real issue which was before the High

Court, namely, the constitutionality of the requirement of consent; instead she had

concentrated on the contention that the suit was incompetent for want of consent.

Asked what course she proposed to adopt, now that she was informed of the true

position, she readily replied that the hearing of the appeal should continue, F adding

that during the short adjournment, she had prepared herself sufficiently to respond to

Mr Mughwai's submissions.

We continued with the matter even though we felt that the learned State Attorney

needed more preparation in order to assist the Court in proceeding with the appeal

which raised an important G constitutional issue.

The memorandum of appeal raised two grounds:

1. The Honourable Judge erred in law in not determining the real issue

before the Court, ie

The interpretation and Constitutionality of the provisions of s 6

of the Government H Proceedings (Amendment) Act 10 of 1974 vis-à-vis the

Constitution of Tanzania.

2. The Honourable Judge erred in failing to hold that s 6 referred to in

para 1 herein is unconsitutional, obsolete and that where there is a dispute between a

citizen and the Executive, the Executive cannot lawfully impede or obstruct access to

High Court. I

1993 TLR p162

KISANGA JA

A On the first ground that the Trial Judge failed to consider and determine the issue

before her, that is, the constitutionality of s 6, we think that there is merit in the

complaint. Upon reading her brief ruling on the matter, covering just about two

pages, it becomes apparent that the learned Judge either did not comprehend the issue

before her or, if she did, she deliberately evaded it. Paragraph B 11 of the plaint

states, inter alia, that:

`The plaintiffs will contend at the trial that it is not in law necessary to obtain

the fiat as such requirement is null and C void as it seeks to contravene the basic

structure of the Constitution of Tanzania and its specific provisions.'

The appellants specifically called upon the Court to consider the validity of s 6 as

against arts 4(1), 108 and 13(6)(a) of the Constitution. These articles make provisions

for separation of powers, confer D jurisdiction on the High Court to hear and

determine complaints and provide for the basic right to a fair hearing. Counsel had

submitted that s 6 contravened these provisions of the Constitution and accordingly

invited the Court to declare that section null and void.

E In disposing of the issue very briefly the Trial Judge simply said:

`Considering that the Government Proceedings Act 40 of 1974 was properly

enacted by Parliament as stipulated in article 97 of the Constitution of the United

Republic of Tanzania, it is sound law and does not infringe the provisions F of article

13 and/or article 108 of the Constitution.'

In our view this was, to say the least, a very superficial way of dealing with the issue

which was before the Court. for, the fact that s 6 was duly enacted by a competent

Legislature is no answer to G the question whether that section is valid or not as

against the Constitution. It is one thing for a provision of the law to be properly or

validly enacted by competent Legislature, but quite another for it to be constitutional;

the two are not the same.

H The appellant did not allege or even suggest that s 6 was improperly enacted by

the Legislation. Their claim was that s 6, although properly and duly enacted by the

Legislature, offended some provisions of the Constitution, the supreme law of the

land. It did so, the appellants continued, in a number of ways, primarily by denying

them the opportunity of having their grievances heard and I determined by the High

Court which was duly vested with such jurisdiction. There-

1993 TLR p163

KISANGA JA

fore what the appellants were asking for was a declaration under article 64(5) of the

Constitution that A s 6 was null and void because it was inconsistent with the

supreme law of the land. The learned Judge in merely stating that s 6 was sound law

because it was properly enacted by a competent Legislature, did not address herself

squarely to that issue, and to the extent of such omission she was clearly in error. B

The second ground is really an amplification of the first one. It specifies the matters

which the Trial Judge had failed to deal with and to decide upon. Mr Mughwai

submitted that s 6 is null and void and should be struck down because it violates the

guaranteed right, under the Constitution, of unimpeded C access to the Courts to

have one's grievances heard and determined. In this respect he specifically referred to

arts 13(3) and (6)(a) and 30(3) of the Constitution, the provisions of which we

reproduce hereinbelow for case of reference. D

`13(3) The civil rights, obligations and interests of every person and of the

society shall be protected and determined by competent courts of law and other state

agencies established in that behalf by or under the law. E

(4) . . .

(5) . . .

(6) For the purpose of ensuring equality before the law, the state shall

make provisions:

(a) that every person shall, when his rights and obligations are

being determined, be entitled to a fair hearing by the court of law or other body

concerned and be guaranteed the right of appeal or to another F legal remedy against

the decisions of courts of law and other bodies which decide on his rights or interests

founded on statutory provisions.

30(3) Where any person alleges that any provision of this part of this chapter

or any law involving a basic right or duty G has been, is being or is likely to be

contravened in relation to him in any part of the United Republic, he may, without

prejudice to any other action or remedy lawfully available to him in respect of the

same matter, institute proceedings for relief in the High Court.' H

Learned Counsel submitted that the combined effect of violating these provisions has

far reaching consequences. It means that s 6 places an obstacle or obstruction to access

to the Courts of Law. The section offends the principle of separation of powers by

enabling the Government to exercise a judicial function of deciding upon its civil

liability or the extent of such liability and hence to I

1993 TLR p164

KISANGA JA

A decide whether or not it should be sued at all. It enables the Government to be

the judge in its own cause. It also seeks to limit Government liability at the expense of

the rights of the individual. It offends against the principle which requires the

Government to be responsible and accountable to its people. It goes against the

principle of openness or transparency.

B Referring to article 30(2)(b) of the Constitution which permits derogation from

human rights in certain circumstances, learned Counsel was of the view that s 6 is not

saved because it is too general in its application.

C Replying to these submissions Mrs Sumari supported the decision of the High

Court that s 6 was not unconstitutional. If we understood her correctly, the thrust of

her argument was that although s 6 violates arts 13(3) and 30(3) of the Constitution,

that by itself did not make the said section unconstitutional because the complainant

of the violation has remedies open to him, such as orders D of mandamus and

certiorari. In other words, if the Government withheld the consent, the appellants

could always seek remedy for this by asking for an order of mandamus or certiorari

compelling the Government to give consent or not to withhold consent.

E With due respect to the learned State Attorney, this amounts to evading the issue.

It does not really grapple with and answer the question before us. The argument

merely echoes the provisions of article 13(3) of the Constitution. That article says that

on aggrieved person may seek redress in the High Court, and that this is without

prejudice to any other remedy which may be available to him. F This means that the

complainant of a violation of a basic human right is free to seek redress under article

30(3) although he could equally well have sought relief by way of mandamus or

certiorari. Therefore if the appellants in this case chose to seek remedy, as they did,

under article 30(3) they G were exercising their constitutional right as to which

procedure to follow in seeking redress. There can be no justification whatsoever for

saying that because s 6 presents an obstacle, the complainant of a violation of this

basic human right should be restricted to other forms of remedy. A complainant H

should be free to choose the best method legally open to him to prosecute his cause.

This is so under article 30(3) of the Constitution. Section 6 which denies this

constitutional right cannot be said to be valid merely because the applicants could

have remedy elsewhere; that would amount to going around the problem instead of

striking at it directly. Our firm view is that the I offending section must be held and

tested directly against the Constitution itself.

1993 TLR p165

KISANGA JA

Mrs Sumari also claimed that s 6 was justified on grounds of public interests. By this

we understood A her to say that the section was saved by article 30(2) of the

Constitution which permits derogation from basic human rights in certain

circumstances. She contended that s 6 was necessary because it enabled the

Government to regulate and control the suits which are brought against it. She was of

B the decided view that if s 6 were to be removed, that would open flood gates of

frivolous and vexatious litigation which would embarrass the Government and take

up much of its time that could be better spent on matters connected with the

development and welfare of the members of the society generally. In this regard the

learned State Attorney urged that the Government and the C individual are not, and

cannot be, equal because the Government has the responsibility of looking after the

wider interests of the society at large.

On the material before us we have no difficulty in holding that s 6 violates the basic

human right of D unimpeded access to the Court to have one's grievances heard and

determined there. That right is guaranteed under arts 13(3) and 30(3) of the country's

Constitution reproduced earlier in this judgment. Indeed the Republic's view was that

the violation did not invalidate s 6 (the requirement of consent to sue) because where

such consent was withheld, the victim was not without remedy, he E could apply for

orders of mandamus or certiorari. However, we have rejected that argument for the

reasons given earlier in this judgment.

The more difficult question is whether s 6 is saved by arts 30 or 31 of the Constitution

which permit F derogation from basic human rights in certain circumstances. Article

31 which relates to measures taken during the period of emergency is obviously

inapplicable here. And as far as article 30 is concerned, only sub-art (2) is relevant; it

provides that: G

`30(2) It is hereby declared that no provision contained in this part of this

Constitution, which stipulates the basic human rights, freedoms and duties, shall be

construed as invalidating any existing law on prohibiting the enactment of any law or

the doing of any lawful act under such law, making provision for - H

(a) ensuring that the rights and freedoms of others or the public interest

are not prejudiced by the misuse of the individual rights and freedoms;

(b) ensuring the interests of defence, public safety, public order, public

morality, public health, rural and urban development planning, the development

planning, the development and utili- I

1993 TLR p166

KISANGA JA

A zation of mineral resources or the development of utilization of any

other property in such manner as to promote the public benefits;

(c) ensuring the execution of the judgment or order of a Court given or

made in any civil or criminal proceedings.

(d) the protection of the reputation, rights and freedoms of others or the

private lives of persons involved in any Court proceedings, prohibiting the disclosure

of confidential information, or the safeguarding of the dignity, B authority and

independence of the courts;

(e) imposing restrictions, supervision and control over the establishment,

management and operations of societies and private companies in the country; or

C (f) enabling any other thing to be done which promotes, enhances or

protect the national interest generally.'

This Court had occasion to deal with a similar situation in the case of The Director of

Public D Prosecutions v Daudi Pete (1) where it considered the validity of s

148(5)(e) of the Criminal Procedure Act denied bail to the accused in a criminal case

in certain circumstances. In that case it was recognised that because of the coexistence

between the basic rights of the individual and the collective rights of the

society, it is common nowadays to find in practically every society limitations E to

the basic rights of the individual. So that the real concern today is how the legal

system harmonizes the two sets of rights. In trying to achieve this harmony, the view

has been that in considering any act which restricts fundamental rights of the

individual, such as the right of free access to the Court of law in this case, the Court

has to take into account and strike a balance F between the interests of the

individual and those of the society of which the individual is a component.

Thus consistent with that approach, the Court in Pete's case laid down that a law

which seeks to G limit or derogate from the basic right of the individual on grounds

of public interest will have special requirements; first, such a law must be lawful in

the sense that it is not arbitrary. It should make adequate safeguards against arbitrary

decisions, and provide effective controls against abuse by those in authority when

using the law. Secondly, the limitation imposed by such law must not be H more

than is reasonably necessary to achieve the legitimate object. This is what is also

known as the principal of proportionality. The principle requires that such law must

not be drafted too widely so as to met everyone including even the untargeted

members of the society. If the law which infringes a basic right does not meet both

requirements, such law is not saved by article 30(2) of the I Constitution, it is null

and void. And any law that seeks

1993 TLR p167

KISANGA JA

to limit fundamental rights of the individual must be construed strictly to make sure

that it conforms A with these requirements, otherwise the guaranteed rights under

the Constitution may easily be rendered meaningless by the use of the derogative or

clawback clauses of that very same Constitution.

We shall now apply the two tests to s 6 to see if it is saved by article 30(2) of the

Constitution. B Section 6 provides that:

`6. Notwithstanding any other provisions of this Act, no civil proceedings may

be instituted against the Government without the previous consent in writing of the

Minister.' C

The section carries a proviso which is not relevant to the facts of the present case.

It is most apparent that the law is arbitrary. It does not provide for any procedure for

the exercise of the Minister's power to refuse to give consent to sue the Government.

For instance, it does not D provide any time limit within which the Minister is to

give his decision, which means that consent may be withheld for an unduly long

time. The section makes no provisions for any safeguards against abuse of the powers

conferred by it. There are no checks or controls whatsoever in the exercise of E that

power, and the decision depends on the Minister's whims. And, to make it worse,

there is no provision for appeal against the refusal by the Minister to give consent.

Such law is certainly capable of being used wrongly to the detriment of the

individual. F

Turning now to the requirement that the law must not be drafted too widely, it is

obvious once again that s 6 does not pass that test either. The section applies to all and

sundry including even those against whom it was never intended. If, as contended by

Mrs Sumari, the object is to exclude or discourage the bringing of frivolous and

vexations litigation against the Government, it is not shown G how that object is

achieved without also limiting the right of persons who have genuine and legitimate

claims against the Government.

Even if the limitation imposed by s 6 could be selective, the pertinent question to ask

is whether there was really a compelling need for such limitation. In other words, in

what way is the limitation justified H in public interest so as to bring it within the

purview of article 30(2) of the Constitution? As noted before, Mrs Sumari's

contention was that the lifting of the limitation will encourage vexatious suits against

the Government such as to embarrass the Government and to take up much of its

valu- I

1993 TLR p168

KISANGA JA

A able time which could be better spent elsewhere. But, apparently anticipating Mrs

Sumari, Mr Mughwai in his address earlier on, had argued that there was no such

limitation imposed in relation to suits against local governments where the only

requirement is a month's notice to sue, and yet the Courts have not been flooded with

suits against local governments. When we asked Mrs Sumari, to B respond to that

argument she was still at ease to do so.

On this same point Mr Mughwai had submitted that the law in Zanzibar did not

impose such limitation, and yet it is not shown or claimed that the Courts in

Zamzibar have flooded with frivolous C and vexatious litigation against the

Government. In another dimension the learned Counsel charged that in this context s

6 was discriminatory and hence unconstitutional. He referred us to the decision of the

High Court (Mwalusanya J) in the case of Peter Ng'omango v Gerson M K Mwangwa

and Attorney-General (2) in which this same issue of Ministerial fiat or consent had

been raised. There D the learned Judge cited three cases of the Zanzibar High Court

in which no consent, but only a month's notice, was required to sue the Union

Government. The three cases are: Himidi Mbayo v The Brigade Commander (3);

Shabani Khamis v Samson Goa and Another (4) and Khalfan Aboid E Hamad v The

Director of Civil Aviation (5). Mwalusanya J took restriction based on which Court, in

the United Republic, one goes to seek remedy against the Government of the same

United Republic. We entirely agree with the learned Judge that this is violative of arts

13(1) and (2) of the Constitution which provide that:

F `13 (1) All persons are equal before the law and are entitled without any

discrimination, to equal opportunity before and protection of the law.

G (2) Subject to this Constitution, no legislative authority in the United Republic

shall make any provision in any law that is discriminatory either of itself or in its

effect.'

On a similar reasoning we reject Mrs Sumari's submission that because the

Government is H responsible for the wider interests of the society, then it should

not be placed on an equal footing with an ordinary person. We can find no

justification for the distinction. We think that the equality before the law envisaged

in article 13(1) above embraces not only ordinary persons but also the Government

and its officials; all these should be subjected to the same legal rules.

I While advancing the argument of a compelling need for limita-

1993 TLR p169

KISANGA JA

tion, Mrs Sumari again claimed that the requirement of consent was necessary in

order to give A Government the opportunity during which to study the proposed

claims and, where warranted, to consider settlement out of Court. This, she said,

spares the Government of the embarrassment of appearing in Court and saves its

valuable time to serve the wider public. We could find no substance B in this

argument. The Government can achieve all this within the normal procedures of

bringing civil suits. Ordinarily before a person decides to sue the Government, there

must be some prior communication between the person intending to sue the

Government and the Government in which C the former will have indicated

sufficiently the nature and grounds of his claim. Thus if the Government so wishes, it

can assess the claim and, where warranted, consider settlement out of Court during

such pre-suit communication. The requirement of consent to sue is really not

necessary for the purpose of affording the Government time to assess the claim and

consider settlement out of Court. On the other hand we agree with the learned Judge

in Ng'omango's case D above that such restriction militates against the principles of

good governance which call for accountability and openness or transparency on the

part of Governments.

Therefore, unlike the learned Judge from whom this appeal arises, we find that s 6 of

the E Government Proceedings Act 1967 as amended by s 6 of Act 40 of 1974 is

unconstitutional for the reasons we have amply demonstrated above. The Republic

has totally failed to show that the said section is saved by the provisions of the

Constitution which allow for derogation from basic human F rights. In the

circumstances we have no alternative but to hold, in terms of article 64(5) of the

Constitution of the United Republic of Tanzania that s 6 of the Government

Proceedings Act 1967 as amended by Act 40 of 1974 is void. It is accordingly struck

down for being unconstitutional. G

The appeal is allowed with costs, and the preliminary objection having failed, the suit

is to proceed in accordance with the law.

1993 TLR p170

A