By Evarist Baimu Nyaga Mawalla - Home

courts in respect of the stay of suits when circumstances are such as to invoke theoperation of that sections. It was further held that one test of the application of the to aparticular case is whether on the final decision being rouched in the previous suit suchdecision would operate as res judicate in the subsequent suit. Indian decisions arecertainly not birding on this Court, but they deserve the greatest respect where theyexports a provision which was previously our own and which remains in pari materialwith our own.The Indian Code of Civil Procedure was in application in Tanganyika until 1966 and s.10 thereof is in pari material with our s. 8. It is therefore not only in courtesy but also incommon sense that I consider myself entitled to rely on these decisions. In so doing, Ihold that the provisions of s. 8 our Code are mandatory and provide no room fordiscretion in circumstances where it is evocable.It is evocable in the instant case. Moreover, there is no doubt that the final decision in thepending appeal would operate as res judioatra in the instant petition. The question is notwhether I am in a position to devide the matter ahead of the Court of Appeal; courts oflaw are not racecourses. The point is that I am bound to stop in my tracks and let theprevious suit proceed to finality because the decision on the matter in issue would operateas res judicate on the same matter in the suit before me. I will therefore stay the desionthe on the second issue until the outcome of Civil Appeal No. 24 of 1994.In the third issue the Court is invited to pronounce on the constitutionality of ss. 5(2), 13, 25, 37 – 47 of the Newspapers Act, 1976 and para. 12 of G.N . No 166 of 1977. Ihave two observations to make in this connection. First, it must be realized that theconstitutionality of a provision or statute is not found in what could happen in itsoperation but in what it actually provides for.Where a provision is reasonable and valid the more possibility of its being abused inactual operation will not make it invalid Collector of Customer (Madras) v. N.S. Chetty.AIR 1962 SC 316. It seems to me, with respect, that much of what was said against theabove provisions reflected generally on what could happed in their operation rather thanon what they actually provided for. I was generally referred to the decision of the Courtof Appeal in Kukutia ale Pumbum v. Attorney General, Civil Appeal No. 32 of 1992(unreported),but I think that case covers a different situation – the situation where aperson was deprived of his right to sue unless he was permitted to do so by the defendant( the Government ). The provisions complained of however, are administrative andimplementational and their constitutionality can only be challenged if they were nowithin the power of the Legislature to enact them.Secondly, and most importantly, have unfortunately come to doubt thepetitioner’s standing in this issue. As stated before, our Constitution confers a doublecapacity on every person – his personal and his community capacities. Now, in whatcapacity did the petitioner take up these provisions? It cannot be in his personal capacitybecause there is nothing in the provisions or any of them which is shown to have215