He said between pp.23 and 25 of his judgment:
In my judgment I find that the trial magistrate to have access to the documents they required for
their defense was a fundamental defect which is not curable. The error is so fundamental that it
has rendered the whole trial a nullity.
This is significant indeed. It is established practice that where a matter can be disposed of without
recourse to the Constitution, the constitution should not be involved at all. The court will
pronounce on the constitutionality of a statute only when it is necessary for the decision of the
case to do so: Wahid Munwar Khan vs. State AIR 1956 Hyd .22. In that case a passage from
Coday’s Treatise on Constitutional Limitations was also cited in these terms.
In any case where a constitutional question is raised, though it might be legitimately presented by
the record, yet if the record presents some other clear ground the court may rest its judgment on
that ground alone, if the other questions are immaterial having regard to the view taken by the
court.
The Supreme Court of Zimbabwe expressed the same view in Minister of Home Affairs –vs-
Bickle & Ors (1985) LRC (Constitution) 755 where Georges. C.J. said (at p. 750):
“Courts will not normally consider a constitutional question unless the existence of a
remedy depends upon it; if a remedy is available to an applicant under some other
legislative provision or on some other basis, whether legal to factual, a court will usually
decline to determine whether there has been, in addition a breach of the Declaration of
Rights.”And here at home the Court of Appeal had this to say in Attorney General Vs. W.K. Butambala,
Criminal Appeal No. 37 of 1991(unreported).
“We need hardly say that our Constitution is a serious and solemn document. We think
that invoking it and knocking down laws or portions of them should be reserved for
appropriate and really serious occasions.”The court continued:
....it is not desirable to reach a situation where we have “ambulance Courts” which go
round looking for situations where we can invalidate statutes.It is evident that the appeal under reference could have been disposed of on the ground that the
trial was a nullity without going into the constitutionality of S.41. It is indeed curious that a trial
which was adjudged a nullity could still provide the basis for striking down S.41. On these
grounds and others, I was unable to benefit from the decision of my learned brother.
The fifth issue takes us back to the amendments to the Constitution and elsewhere which make
membership of and sponsorship by a political party mandatory for a person to contest
presidential, parliamentary or local authority elections. I hold that the amendments were
constitutionally valid but I reserved my position on their practical implication until this stage. It is
essential for the purpose of the present exercise, and for case of reference, to set out side by the
provisions of Art. 21(1). Art. 20 (40 and Art. 39 (c), the last mentioned being representative of
allied amendments elsewhere. Art .21 (1) reads as follows: