By Evarist Baimu Nyaga Mawalla - Home

From the above persuasive cases, I am moved by theircommonsense, legal logic, and I am minded to hold the following.First, the legislature in its legislative wisdom, may provided forstatutory alternative remedy, second failure to exhaust suchalternative remedy, is depending on the circumstances of the case,not a bar to the maintainability of a writ – partition, and third, itwould in my view, seem that, the rule of exhaustion of alternativeremedy is a rule of convenience, and discretion, the latter beingexercised judicially, and fourth, such alternative remedy mustconvenient, expeditions and efficacious.However, having said, written and submitted as above, I wouldhurriedly but fundamentally change course concede exceptions andsubmit, that considering the paramount of fundamental humanrights, whose transgression is alleged here, it would seem to me,that the alternative remedy doctrine, has hardly any relevance,where the matter it involves the Constitutionality of statute,effecting the said fundamental human rights, the determination ofwhich, would not be within the jurisdiction of subordinate Courts.And if I may be allowed to add, another exceptional circumstance,as I can see it, I would say, it is futile an exercise, and for want ofbetter name, to call it an alternative remedy, to drive a party to a socalled alternative remedy, when the instrumentality, or organ forwhich has prejudged the …….. the authority whose order isimpugrad og /has acted under the general, or speed directions ofthe said authority or there is a real likelihood of bias in thatdirection, or actual administration, or odispesantation of theremedy. Thus may I be allowed to maintain that exhaustion ofalternative remedy is not in anyway of absolute demand, there aresometimes clear cut, situations, where fairness would compel thenon-use of the alternative remedy option.Coming into the Arena to apply the above to the facts in point,as disclosed, by the affidavits and written submissions, as generallyunchallenged, I get a clear and vivid position, that the cancellationof the Society’s registration is inextricably inter with the Ordinance,and the rules made thereunder, the appellate authority, theMinister is the Ministerial boss of the Registrar of Societies, and hispowers are derived from the very Ordinance, whose theConstitution is being challenged; constitutionality post –commencement of and I am satisfied that it makes sense to kill twobirds with one stone, but more importantly this could have pre-101