Mwaikasu, J.: In this suit, Mpanda District Council, a Local Government Authority, established under Act No. 7 of 1982, sues the Defendant one Yekonia Ngiliye upon a contract to supply 600,000 burnt bricks.
The Council has sought for and has been offered the services of a State Attorney, an E officer of the Attorney General Chambers, stationed at Mbeya; to prosecute its claim. The defendant is defended by Mr. Bateyunga, learned advocate.
When the case came up for hearing on 13/10/88, Mr. Bateyunga, raised a preliminary F point of objection; contending that, while the learned State Attorney, was under the Advocates Ordinance Cap. 341, clearly an advocate for the government of the United Republic in both criminal and civil matters affecting the government as such, it was doubtful as to whether, such role of the State Attorney also extended to defending G corporate public bodies as the Mpanda District Council in civil matters; arguing that as such corporate body, the Council had been conferred with its own legal entity with power to sue and be sued and that in defending its interests in civil matters it had to use its own lawyers employed by it either on temporary terms or permanent terms. For this H reason the learned State Attorney was considered to have no locus standi.
Mr. Mbise, for his part maintained that as a legal officer in the Attorney General's Chambers, representing the Attorney General he was entitled to appear before this court I and defend the plaintiff Council because the Attorney General was, in law, empowered to
appear to provide legal defence services to all Ministries, departments and institutions A that are directly under the government of the United Republic when the interests of the government of the United Republic were to be protected.
In this case he felt that the government of the United Republic had its financial interests at B stake as it was the provider of substantial sums for the carrying out of development projects by the Council. And that as evidence of such interest by the government of the United Republic, the Regional Commissioner had direct control over the funds of Local Government Authorities within his region and the accounts of such Authorities have to be C audited by the controller and Auditor General. He added that unlike most Urban Authorities, the District Council had no legal officer of its own and did not have provision for engaging one.
That is clearly evidenced by the fact that unlike the clear provision under s.100 of the D Local Government (Urban Authorities) Act No. 8 of 1992, relating to appearance of an Urban Authority in legal proceedings, no similar provision is to be found under the Local Government (District Authorities) Act No. 7 of 1982, under which Mpanda District E Council was established, hence the need for legal representation by the Attorney General's legal personnel. It is also interesting to note that under s.100 of the Local Government (Urban Authorities) Act 1982, even the representative of such Urban Authorities by any of their officers as provided there under is subjected to general institutions given by the Attorney Geneal.
Now as to the standing of the legal officers of the Attorney General's Chambers, in the F legal profession that is clearly laid down under S.3(1) (2) (a) of the Advocates Ordinance Cap. 341. It is there provided as follows:
3-(1) Every officer to whom this secion applies shall, in connection with the duties of this office, G be entitled to practise as an advocate in the High Court or in any court subordinate thereto constituted under the subordinate court's ordinance (now Magistrates Court Act 1984) and to perform any of the functions which in England may be performed by a member of the Bar as H such or by a solicitor of the supreme court of Judicature as such and shall not except as in this ordinance expressly provided, be subject to the provisions of this ordinance.
(2) The officers to whom this section applies are- I
(a) The Attorney General, Parliamentary Draftsmen, and State Attorney, and any A person duly qualified holding office in the Attorney General's Chambers;
There is no doubt that though a body corporate, a District Concil has very close links B with the central government. This is clearly evidence by the close financial and administrative controls exercised by the central government of the United Republic over the financial and administrative affairs of all Local Government Authorities, both Urban and District Authorities. C
The issue is whether a State Attorney can legally be said to have audience before this court while representing a Local Government Authority as the case in the instant case.
I answer such question in the positive. I say so with much confidence upon reading first, the provision of s.100 of the Local Government (Urban Authorities) Act 1982. It is D under such section that whatever representation an Urban Authority may have in a legal proceedings that would have to be subject to general instructions from the Attorney General. That means that in such situation the Attorney General will have the liberty to stop any of the Authority's intended legal representative and take up the representation E himself, personally or by any other legal officer under him. I cannot imagine that the Attorney General having been clothed with such powers in respect of Urban Authorities, he is denied of similar powers in respect of legal representation for District Authorities. I F take the omission to have similar provision under the Local Government (District Authorities) Act No. 7 of 1982 as a mere oversight by the Parliamentary Draftsmen. For had it been intended to have a different system of representation for District Authorities it would have been so clearly stated. G
Secondly experience is not lacking. For the case of Chief Nehemia Otonga v Stephen Kinyanjui [1959] E.A. 1096 (C.A.) which originates from Kenya is very much to the point as it had to tackle a similar problem.
In that case the appellant was a Chief of the Chania Location, in the Republic of Kenya, H then a British colony. By virtue of s.5 of the Native Authority Ordinance (Cap. 97) it was the duty of every chief to maintain order in the area in respect of which he was appointed and for that purpose he was vested with certain powers under the Ordinance. The action from which this appeal to the Court of Appeal was preferred and in which I judgment had been given
against the appellant as the defendant, related to the use by the appellant of a motor A truck belonging to the respondent on four occasions, in order to provide him transport for his duties as chief, and for use in certain matters related to the emergency. Counsel for the respondent took, among other things, a preliminary objection that Mr. Rumbold, B then crown counsel, was incompetent to appear on behalf of the appellant.
Dealing with such objection their Lordships, on the authority of a number of English cases held inter alia that it is within the administrative discretion of the Attorney General C to decide whether it is in the interest of the crown (the Republic in our case) that a particular litigant should be provided with legal representation and once the decision had been taken to provide the appellant with counsel, it was within the scope of crown counsel's official duties to appear on his behalf.
Now substituting our State Attorney for crown counsel, it goes without saying that D having been decided by the Attorney General to represent the plaintiff, Mpanda District Council, Mr. Mbise, learned State Attorney, has undented locus standi in this suit. He is therefore entitled to prosecute this suit as it is within the scope of his official duties. E
Order accordingly.
F