By Evarist Baimu Nyaga Mawalla - Home

as in terms of Government Proceedings Act 1967, in particular section 9 thereof,in any “Civil Proceedings” against, or by the Government, it is the AttorneyGeneral, who is the part and that in the circumstance of the case, the Minister, as aparty be stuck out. It does seem that, this submission, was not hospitably receivedby Prof. Shvji, who maintained, that such joinder issue, was premature, as suchissue trespassed, into the territory of jurisdiction, the lonely preserve of thatlegally constituted constitutional court, that this court is not. He added, that evenif, the position was tenably otherwise, the Hon. Minister could be made apart,under the provisions of section 7(3) of the Basic Rights and Duties Act 1994, aself constrained statute, a statute independent of the Government proceedings Act1967.With respect, it must be appreciated, and I hope we do, that substantially, we are dealingwith, an application for a temporary Injuction, and that this question of joinder ofparties, whether under the Civil procedure code 1966, or under the GovernmentProceeding Act 1967, or whether under the Basic Rights and Duties EnforcementAct 2994 pertains, to pleading and drafting of plaint, or petition, as the case maybe, considering as to who can, and should be impleaded as defendant, or who isnecessary party. And a necessary part to me, would and should mean, a partywhose impleadment in the suit, or petition, is the one who is absolutely necessary,for the determination of the controversy, between the parties, who helps the courtin passing the decree, or in completely deciding, the rights and liabilities of theparties. Have been impleaded. Is whether, there is a breach of any pleadingprovisions of law, or rules, which requires any one to be, or not to be joined, inthe array of parties, and whether such provisions are mandatory, or merelydirectory. It is my sincere submission, that, since the question of parties and thejoinder thereof, pertain to the constitution of a plaint, or petition, it is party andparcel of the suit, or petition, as framed, or as should be legally framed, theimpeachments, or amendment of which, is the preserve of the fully constitutioncourt, and not susceptible to interlocutory jurisdiction, and I would advise Mr.Werema accordingly. However, without prejudice to the above position, I wouldstill decidedly add, that even if the joinder of parties, was not stalkingencroaching upon jurisdictional territory, section (5) of the civil procedure code1966, has this to tell us loudly, and perhaps pre-emptily:In the absence of any specific provisions, to the contrary, nothing in thiscode, shall be deemed of procedure, presc4ribed by, or under other law forthe time being in force.Avoiding, both judicial and legal haste, we have to realize, that such is a saving ofprocedure prescribed in, or by other law, that rule obviously cover the provisions ofsection 7(3) of the Basic Rights and Duties Enforcement Act, 1994, for the promotion ofthe impleadment of the Minister. I would however, agree, with Prof. Shivji, that the issueis at this juncture jurisdictionally premature, if also, not pertinent to the application, for atemporary Injuction, or the resistance thereof, but all the same answered, if notinadvertently.94