By : Dr. Odhiambo and Mr. Wandera ( Lecturers MUK)
Public Authority (ies) herein abbreviated as PA can only exercise legally powers which they have under the law. Ultra- vires arises where a P.A exercises powers illegally. It may be substantive which means that a P.A did not have powers it purported to exercise. It may also be procedural in the sense that public authorities adopt procedures which are not provided for under the law i.e. it ignored the established procedures.
Substantive Ultra-vires
It a rises where a P.A exercises powers or functions which are not granted by the relevant statute / law. Courts may be called upon to intervene where a public authority exercises powers which are not granted and courts can give appropriate remedies after interpreting the provisions of the relevant statute e.g. ultra-vires will arise on grounds of jurisdiction. In Re: Abdalla Salim Ali (1967), the principal immigration officer wanted to deport the plaintiff. The plaintiff pleaded that he was a Tanzanian citizen so he could not be deported to another country. Court held that if the principal immigration officer did not have the powers to do so, he acted ultra-vires his powers by deporting a Tanzanian citizen which were not provided for by the statute.
Ultra-vires may also arise were conditions precedent to exercise of particular powers are not fulfilled. In Estates and Trustees agency Vs Singapore I.T (1937) AC 898, the relevant authority was given powers to demolish buildings which were unfit for human habitation. The relevant authority went ahead and demolished the applicant's house but that the condition was not fulfilled. Court held that failure to satisfy the pre-condition meant the resultant act was ultra-vires.
Ultra-vires may also arise where an action is taken by a wrong authority. All statutes normally have the organisational frame work of carrying out certain activities.
It may also arise where the proper authority is improperly constituted i.e. membership of proper authority is not properly put. Such examples include instances where some decisions have to be made by tribunals composed of many members like the land tribunal, Tax appeals tribunal (3 members), therefore it will arise where non-members participate in making the decision.
In Dent Vs Kiambu Liquor Licensing Court (1968) EA 80, Dent applied for a liquor licence. While considering the application to grant or not to grant the license, non-members were allowed to give their views by show of hands. Court held that the decision of the liquor licensing court was ultra-vires because it was improperly constituted in terms of membership and that the proper members acted under dictation from a particular group of people.
In addition, the proper authority may also not be properly constituted where provisions relating to quorum are not fulfilled i.e. a minimum number of required members are not realised. In Sunderji Virji Vs Punja Hila (1959) EA 734, the rent restrictions act gave power to the rent tribunal to determine the amount of rent that was to be paid by tenants to land lords. The chairman of the tribunal sat alone and determined the rent payable as between tenants and land lords. Court held that the act of the chairman was ultra-vires because the tribunal could only reach such decisions when it had a minimum membership present.
NB. Where there is no quorum, majority can act legally.
Question; Supposing a decision has to be made by a panel of persons and in the course of proceedings one member does not turn up- is the quorum there?
In such a case, quorum should as much as possible be maintained through out, where quorum is not maintained, it may be regarded as having been improperly constituted.
Ultra-vires may also arise where there is illegal transfer of powers. This arises due to the principle that a delegate can not delegate (secondary delegation). Examples include judicial powers; discretionary powers, where the law expressly disregards / prohibits delegation (statutory prohibition) In Howard V Borneman & others [1973] 3 ALLER 64, under section 28 of the Finance Act, a tribunal was to consist of a chairman and two or more persons appointed by the local chancellor as having special knowledge of and experience in participation by members in decision, one member was absent broad. The issue before court was whether his absence and non participation in the decision made the decision null and void. Court held that in absence of the fourth member, the purported determination was not validly determined. The tribunal had to be consisted of full members and the provision for determination by quorum could not be implied in section 28 of the Act.
In Rahemtula Gullamani Vs R, the control ordinance empowered the governor to make rules for destruction of cotton plants after the harvest season. The governor delegated his powers to make decisions to the director of agriculture and he gave him powers to determine for dates of which all cotton stores would have complied with that requirement. The appellant did not comply and was prosecuted and he challenged the notice issued by the director of agriculture, court agreed with him in that Held; that the delegation was ultra-vires in so far as it purported to give the director of agriculture legislative powers.
In Jan Mohammed Vs R, Had similar facts-governor had powers under native produce import powers to make rules regarding native produce. The governor delegated his power to director of agriculture to specify the areas of operation of rules. The appellant challenged the validity of rules made by the director of agriculture. Court held that they were ultra-vires because the delegation of making rules was unlawful.
Procedural ultra-vires
A P.A is expected to act within the procedures which are laid down under the relevant law. Procedures are usually put in place because of the need to ensure that the following are in place;
1. Transparency to avoid arbitrariness.
Public officials should at all times adopt procedures which are known and which do not lead to arbitrariness.
2. To ensure fairness in decision making. Absence of procedures may lead to partial handling of public affairs.
3. To ensure that justice prevails. They normally put in place mechanisms which ensure that the P.A is guided in reaching justice.
4. Ensure that decisions are consistent like cases are treated in the same way.
5. Some procedures require public participation in decision making.
6. Way of informing the public on what is about to be decided and / or what has been decided.
Procedural requirements include;
a) Consultation- many laws require to be made after a consultative process. This will raise issues which need to be answered by a particular policy or law.
- Statutes will normally indicate who should consult who; a person to consult is usually a person charged with formation of a particular law or policy.
-they also normally provide / indicate who should be consulted e.g. interest groups, professional bodies which are in line with that activity, government departments. The main purpose of consultation is to ensure that the resultant policies /laws are accepted by the greater majority of persons and once they are accepted they are easy to implement. Failure to consult means that the P.A has acted ultra-vires and the decision which follows will be regarded as void.
b) Gazetting in promulgation. It is a requirement under many laws e.g. election laws, land Act, companies act etc. Local Government Act , requires gazetting subsidiary bye laws or ordinances. For instance Section 38 (4) of the Local Government Act provides that a bill enacted by the district council and signed by the district chairperson under this section shall be an ordinance of the council and shall be published in the official Gazette and in the local media.
- Further more, the requirement of gazetting is found in the interpretation act, under the Interpretation Act between sections13-16. There is a requirement in all subsidiary legislation, in whatever form or name must be gazetted before courts can take their validity of existence (judicial notice)
In Mwanji Vs R, Court held that regulations which purport to amend some existing legislation must be gazetted in accordance with the provisions of the interpretation act. Where gazetting is not done, such regulation can not be enforced.
c) Antecedent publication
Some laws require publication before enactment of regulation. This is usually a form of a consultative process. It enables the affected persons to know what is being proposed and to give their views on the proposals. Antecedent publication may be in the Uganda gazette e.g. under acts of parliament act. It may also be in any other publication like newspapers, or by putting the publication in a conspicuous place or in a place accessible to the public like it is a requirement in a local government act (proposals and bye-laws). The third schedule to the LGA requires in paragraph 16 that the council shall, not later than fourteen days before a bill is to be debated by the council, publish the draft (a) by fixing a copy of the bill in a conspicuous place on or near the outer door of the office of the district council during office hours; (b) by including the bill as a supplement to an official local publication, if any; (c) by availing copies of the bill to the public; or (d) in any other manner as is customary in the area. (2) There shall be attached to the bill for publication a short memorandum signed by the person introducing the bill, setting out the policy matter of the bill and how the bill seeks to implement that policy.
d) Approval
Some statutes require that certain decisions be approved by a particular public body, such a public body may be a minister, and statutory corporation e.t.c. S.175 of LGA gives power to the Minister of Local Government power to amend the schedules of LGA. It also requires that such amendment should be approved by cabinet. Failure amounts to ultra-vires and nullity.
e) Laying before parliament
This is not the usual procedure under the modern statutes, but there are some old statutes of parliament which require subsidiary legislation to be laid before parliament before laws become operational.
In Wakiso Estates Vs R, there was a legal requirement that regulations made under the labour ordinance be laid before the legislature before they could become operational, this regulations were not laid before the legislature as according to the provision of the ordinance. Wakiso estate was prosecuted for breach of these regulations. They challenged the validity of the regulations because they had been enacted by not following the procedures envisaged under the ordinance. Court held; that regulations were invalid and ultra-vires in so far as they procedures were concerned.
In Ridge Vs Baldwin and others, this was a case involving disciplinary proceedings against a chief constable police, he was dismissed but the relevant committee did not give him a hearing as required by regulations which concerned disciplinary proceedings in the police force and he challenged the outcome of those proceedings. Held that in as much as the decision was arrived at in complete disregarded of the regulations, it must be regarded as void and of no effect.
Principles of natural justice also require the relevant authorities to follow common law procedures which are not found in statutes. Breach of those procedures amounts to breach of principles of natural justice. It is not necessarily ultra-vires. Ultra-vires can only be outside the scope of a particular law.
Research;
Grounds of judicial review were summarised by Lord Diplock in Government Committee Headquarters Vs Minister for civil service that the grounds which an administrative action may be subject to judicial review... would call it ;-illegality, irrationality and procedural impropriety.
Question; Does failure to follow procedure render an act void?
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