By Evarist Baimu Nyaga Mawalla - Home

The respondents Council, Mr. Werema, further gallantlyargued, that the petitioners applicants should have challenged theconstitutionality of the Society’s Ordinance Cap. 337, separately,from the temporary injunction by appealing to the Minister, first.On the other hand, Prof. Shivji maintained that, the application fortemporary injunction is inextricably tied to the grounds, which inthe Petition challenge the constitutionality of some of the provisionsof the Society’s Ordinance, and that even the appellate authorities,demonstrated a scanty regard to the appellate process, which totheir knowledge was already in motion and time was closing in, totheir prejudice. They were look-warm about it, so went thesubmission.I have, dutifully and purposefully, considered this issue,whether the petitioners/applicants should have fully first satisfiedthe appellate alternative, or whether failure to resort to suchalternative appellate remedy, is a bar to the Petitioner/Applicants,to resort to the High Court jurisdiction. Mr. Warema’s submissionre-visited, is obviously luringly attractive as look at, it seemsconsistent with, what was observed by the Indian Supreme Court,in the Case of KASSAM IBRAHIM vs CHUDASAMA A. 1956 BOM.544 (547), thus“It is well settled beyond doubt, that if the law provideadequate legal remedy, which remedy is as efficacious,as the remedy, as this Court can give under theConstitution, then the petitioner must exhaust thatremedy, before he comes to this Court, for exercise of itsspecial jurisdiction, under Articles 226 and 227” (Writeand High Court Superintendence Jurisdiction Articles –Indian Constitution).But, the same Supreme Court, of course in a different set ofcircumstances, had the following to observe, in the case of RAMCHANDER SINGH, vs STATE OF PUNJAR, AIR PUNJ (68), A PUNJ178, thus, and I quote:“It has been authoritatively held that, the plea of alternativeremedy is not an absolute bar, to the maintainability of a writpartition, and the said plea has to be decided, on the acts andcircumstances of each case, where it is raised.”100