PROCEEDINGS AGAINST GOVERNMENT ( LECTURE NOTES )

By : Dr. Odhiambo and Mr. Wandera ( Lecturers MUK )
Brief background
Under common law, it was a general presumption that the crown could not do anything wrong. In theory the crown could do no wrong therefore no liability could ensue against it. Therefore legal proceedings against government were restricted on this ground because government was her/ his majesty's government. This is what is otherwise referred to as immunity from liability. This old age theory that the King could do wrong ignored the fact that the King had a personal capacity as well as a political. This was inappropriately inherited by almost all erstwhile British colonies, Uganda inclusive.

However, common law recognised limited legal liability against government and this could be instituted by way of a royal fiat / petition of right.  Under this procedure, the prospective litigant against the crown could seek permission of the crown itself before he could commence proceedings.

Before 1947, in England, an action could be brought against a Crown servant as a nominal defendant, on the understanding that the Crown would satisfy any judgement against him. A Royal commission submitted a draft bill of reform but the bill did not become law. When, in 1946, the House of Lords refused to uphold the fiction of the nominated defendant reform could no longer be delayed.

In torts, there was a prerogative immunity which was based on vicarious liability against government. Public officers had to be sued in their personal capacity. After great agitation, the Crown Proceedings Act, 1947, was passed and it subjected the Crown to private law, with serious reservations.

In relation to the change in British colonies especially East Africa, it was submitted that it was desirable in a modern democratic state, that subject to certain safeguards, the Government should be able to sue and be sued as if it were a private person of full capacity.  If state action results in individual damage to particular citizens, the state should make redress, whether or not there is fault committed by the public officers concerned. The state is, in some ways, an insurer of what is often called social risk. As a result, the iniquitous rule whereby government is not liable, in tort or breach of contract committed by its servants has long been discarded.

Ugandan position
The government proceedings act was modelled on the Crown Proceedings Act 1947. The GPA makes it possible for government to be sued as if it was a private person. GPA is cap 77. There are special procedures and exemptions that may affect government liability contained in the Civil Procedure and Limitation (miscellaneous provisions) Act cap 72.

When is government liable?
The Government Proceedings Act imposes legal liability on government in respect of;
-contracts
-torts
-breach of statutory duty
-any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer.

Contract
Under common law, liability under contract could only be enforced by way of a royal fiat. of GPA provides that government may be sued in contracts as if it was. This position was found to be unsuitable when governments became increasingly party to contracts which were of a commercial nature. Such contracts included; contracts for supply of goods, services, construction contracts, employment contracts etc. Such contracts required each party to meet it's obligation under contracts. S.2 a private person. This therefore means that government can contract as if it was a private person and once it contracts, it's bound by the laws of contract.  Such contracts may be enforced under the general law of contract or under the specific laws relating to various contracts e.g employment contracts may be enforced under provisions of the Constitution, public service laws, public service regulations and standing orders.

Section 2 of the Government Proceeding Act provides that where any person has a claim against the Government after the commencement of this Act and the claim is either (a) a claim based on contract which, if this Act had not been passed, might by virtue of the Suits By or Against the Government Ordinance have been enforced by an action against the Government; or (b) such that, if it had been made in England against the Crown in right of its Government in the United Kingdom and if the Crown
Proceedings Act, 1947, of the United Kingdom had not been passed, it might have been enforced in England, subject to the grant of Her Majestys fiat, by petition of right, then, subject to this Act, the claim may be enforced by proceedings taken against the Government for that purpose in accordance with this Act. The section evidently shows among others that Uganda applies the common law principles before 1947 to proceedings against government.

Unenforceable Contracts
They may be unenforceable contracts against government. Examples of such contract are void contracts, contracts deemed to be contrary to public policy for instance contracts to commit crimes, illegal contracts, and contracts entered into when the parties had no capacity.   Stinger Vs Minister of local government
Contracts involving money payment are only enforceable where parliament has provided for the necessary funds. Contracts which may be in form of treaties are unenforceable in the domestic perspective unless they have been part of municipal law (ratified).

Characteristics of government contracts
The contracts have usual attributes of private contracts e.g consideration, agreement, parties, terms and conditions. There are however, special features which are common in government contracts;
1. They are normally executed by senior public officers usually a minister, permanent secretary or an ambassador especially if the country and public officer executing the contract on behalf of government. Personal liability may arise where public officer has failed / refused to oblige with the applicable law and procedures.

2. They are usually executed after the tendering process; it is an open and competitive bidding process.
3. Entered on standard terms and conditions of contract, government sets terms and conditions and the other party usually accept what has been set or bargain from what has been set.       
             
TORTS
Section 3 of the Government Proceedings Act (herein called GPA) provides that subject to this Act and section 4 of the Law Reform (Miscellaneous Provisions) Act, the Government shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject  (a) in respect of torts committed by its servants or agents; (b) in respect of any breach of those duties which a person owes to his or her servants or agents at common law by reason of being their employer; and (c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property, except that no proceedings shall lie against the Government by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Government unless the act or omission would, apart from this Act, have given rise to a cause of action in tort against that servant or agent or his or her or estate.

Section 3 (2) of  GPA, provides further that, where the Government is bound by a statutory duty which is binding also upon persons other than the Government and its officers, then, subject to this Act and section 4 of the Law Reform (Miscellaneous Provisions) Act, the Government shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort, if any, to which it would be so subject if it were a private person of full age and capacity.

Under section 3 (3) of the GPA, where any functions are conferred or imposed upon an officer of the Government as such, either by any rule of the common law or by any
enactment, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Government in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

Section 3 (4) of the GPA states that any enactment which negatives or limits the amount of the liability of any Government department or officer of the Government in respect of any tort committed by that department or officer, apply in relation to the Government as it would have applied in relation to that department or officer if the proceedings against the Government had been proceedings against that department or officer.

However, under section 3 (5) of the GPA, no proceedings shall lie against the Government by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or her, or any responsibilities which he or she has in connection with the execution of judicial process.

From S.3 GPA Cap 77 above, government is liable in torts under the following limbs;
- Vicarious liability
-Employer's liability
-Occupiers liability.

Vicarious Liability
It arises like where there is master and servant relationships; employer and employees relationships. Under vicarious liability, a master / employer is liable for the torts committed by his servants during the course of employment while in duty. Such torts can only arise where a servant is acting within the scope of employment. Thus, where a servant of the state commits a tort in the course of his employment, the servant and the state are jointly and severally liable. Section 3(1) (a) of GPA makes government liable for torts committed by its servants or agents.

What is scope of employment?
a) Scope means doing what is expressly or by implication authorised.
b) Doing what is authorised in a way which is not authorised e.g. driving recklessly.
c) What is incidental or consequential upon what is authorised.

In Muwonge Vs AG (1969) EA7, Newbold P stated that the policemen had been sent to quell a riot and the means given to them was the rifle. Having found the riot going on, one of the police fired just like others. For that reason the use of rifles must have been contemplated by their seniors and thus the act of the policeman, was in the course of his duty and the government was vicariously liable.

In Piovano V AG [1972] EA, Court held that the test to be applied in such cases was that, the wrong of the servant must be the natural result of his carrying on his masters business or duties.
Mukwase Vs AG (1972) HCB 29

In Namwandu V AG [1972] EA, court held that at the time of the accident, the soldiers were acting on frolic of their own and not doing anything for their masters as such, government could not be held vicariously liable for the torts committed by them.

Employer's liability
S.3 GPA provides that government will be liable for breach of those duties which a person owes his servant or agents at common law by reason of being their employer.
a) Responsible for safety in employment by employing competent staff.
b) Provision of safe, suitable place and tools of work which are appropriate.
c) Provision of effective supervision and system of work e.g. when injured at work, compensation is provided for under worker's compensation act, an employer has a duty to pay

Occupier's liability
Government as an occupier of premises is also under a legal obligation to ensure safety of those premises. S.3 GPA makes government liable for breach of those duties which under common law are attached to ownership, occupation, possession or control of property and generally these duties relate to safety of the property to invitees (people who are legally there) or neighbours ( persons likely to be affected by that  nuisance.
          
Exceptions to liability
Liability of government may be limited in certain circumstances e.g
1. Where under any law, the responsible officer of government is absolved from liability for a particular act/ omission e.g. police officers are not liable when they act in good faith in carrying out their duties as under the police act.

2. Judicial immunity which protects judicial officers who may act in a manner which inconveniences other persons e.g. wrong decision. In Anderson Vs Gorrie, Court was of the view that no action can lie against a judicial officer even where it is shown that the judicial officer was malicious or corrupt. In AG Vs Oluoch, the Magistrate was sued together with the AG and police officers for wrongful arrest and detention. AG challenged the suit was misconceived because it was brought against magistrate who had judicial immunity. Court held a suit could not be maintained against a public officer who had judicial immunity.

3. Act of state doctrine as a defence.
This means that transaction between state and foreign powers cannot give rise to any action/suit under municipal law to individuals.
In Olle Njogo Vs AG, which involved the treaty between British government and Masai county and British government challenged the suit since it was an act of state and can not lie in a municipal court. Court held not acceptable to sue state. In Katikiro of Buganda Vs AG, the State successfully plead act of state doctrine relating to 1955 Buganda agreement.

4. Torts committed by members of armed forces, as member of the armed forces can not sue government for personal injuries which are inflicted by another member of the forces while on duty.

PROCEDURAL MATTERS
S.7 GPA provides all civil proceedings by or against the Government in the High Court shall be instituted and proceeded with in accordance with rules of court and not otherwise. There are however, a few exceptions which are mainly contained in Civil Procedure and Limitation Act (miscellaneous provision Act).
NB. To protect public interest some of the important procedural matters include; specific procedures which apply to government not other entities.

1. Statutory notice.
S.2 of Civil Procedure and Limitation (miscellaneous provision) Act provides inter alia that no suit shall be brought against government, local authority or scheduled corporation until a statutory notice of 45 days has been served. The purpose is that the notice should have been served to appropriate officer (Attorney General) or the head of scheduled corporation or CAO in Local Government. The requirement of notice is based on the idea that on receipt of notice, government will make a decision as to whether it is necessary to entertain the suit.

The notice includes the substance of the claim, amount of money claimed or other relief and also a summary of elements supporting the claim. The section also provides that the plaint against the government must also include the clause specifically pleading that notice was served.

2. Suits against the government are brought against the AG under article 119 of the Constitution. It provides that the Attorney General shall represent government in courts or any other legal proceeding in which government is a party. Section 10 of the GPA, provides that Civil proceedings by or against the Government shall be instituted by or against the Attorney General. Section 11 thereof requires that all documents required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government shall be served on the Attorney General.

3. Suits against AG may be brought in any court which has jurisdiction over the matter in question. The AG may however, apply to have the suit transferred to high court, if it  is filed in lower courts and AG may make the application where there is an opinion that an important matter of law may arise from that suit. This is provided under section 13 of the GPA.

4. Limitation periods relate to periods in which an action must be brought against a party. Under S.2 of Civil Procedure and Limitation Act, no action founded on tort can be brought against government, local authority or scheduled corporation after the expiry of 2 years from the date of which the action was done. The section also provides that no action founded on contract shall be brought after expiry of 3 years from the date on which the action arose.

Other rules which give special exemption to government relate to remedies and evidence. Remedies in civil proceedings may with a few exceptions be made available against government. However, there some remedies which are not available against government as provided under section 14 of the GPA. These include;
a) Injunction.
b) Specific performance and
C) No remedy of attachment can issue against government property i.e. one cannot attach government property. Section 19(4) of the GPA Cap 77 is to that effect. It provides that except as is provided in this section, no execution or attachment or process in the nature of an execution or attachment shall be issued out of any court for enforcing payment by the Government of any such money or costs as are referred to in this section, and no person shall be individually liable under any order for payment by the Government, or any Government department or any officer of the Government as such, of any such money or costs.

S.14 of the Civil Proceeding and Limitation Act provides that an injunction, specific performance and attachment can not be awarded.

S.19 of GPA provides for the state fiction of orders against government where if a person has had a suit ruled in their favour and costs awarded, he can make an application in that respect after the expiration of 21 days from date of the order or in case the costs have to be taxed after they have been so taxed for a certificate of court that the order of costs be paid.

d) An exparte judgment cannot be made in default of appearance of government under the Government Proceedings (civil procedure) Rules.

e) State privilege in the law of evidence as per S.121 of the Evidence Act as well as 132.
They give the state privilege in the law as regards to evidence, that a public officer cannot be compelled to give evidence relating to confidential government communication.
See article 41 of the Constitution. Also see, Tinyefuza Vs AG
In light of the above, is it a justifiable protection of the state? Are they in line with the constitution and judicial precedent set in the Tinyefuza case?