By : Dr. Odhiambo and Mr. Wandera ( Lecturers MUK)
Art 42 of the 1995 constitution provides that any person shall have the right to apply to a court of law in respect of any administrative decision taken against him/ her. In addition to the courts of law; there are other institutions and procedures a person may resort to if aggrieved by an administrative decision. Accordingly, administrative remedies may be classified into 2;
1. Judicial remedies.
2. Non- judicial remedies.
JUDICIAL REMEDIES
This refers to remedies that an aggrieved party may obtain from a court of law, in most cases the high court. Section 33 of the Judicature Act Cap (13), provides that the High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided. Judicial remedies may be further classified as;
1. Appeals.
From most statutory tribunals appeals lie to the high court e.g. from the tax appeals tribunal and the industrial courts, a person may appeal to the high court.
2. Prerogative orders.
These are special administrative law remedies that were specifically designed to enforce governmental duties and powers.
3. Equitable remedies i.e. injunctions and declarations.
4. Ordinary remedies i.e. damages.
PREROGATIVE ORDERS
These are called so because originally under English law they were available only to the crown and not to the subject. The crown used them to ensure that public authorities carried out their duties and so their main purpose was to ensure efficiency and maintain order in statutory authorities and tribunals of all kinds. Later around the 16th century, they become available to ordinary English citizens also seeking to enforce public duties. There are 3 examples of prerogative orders i.e. certiorari, prohibition and mandamus. These are all under judicial review. They are discretionary remedies and may be granted or refused at courts discretion. These remedies have been provided for under section 34 of the Judicature Act and the Judicature Amendment Act, No. 3 of 2002.
In Chief Constable of the North Wales Police V Evans [1982] 1 WLR 1155 HL, Lord Hailsham stated that the remedy of judicial review is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and administrative powers. That it is not intended to take away from those authorities the powers properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner. That the purpose of the remedies is to ensure that the individual is given fair treatment by the authority to which he has been subjected. That the function of court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by law.
CERTIORARI AND PROHIBITIONS
There are complimentary remedies based on common law, certiorari issues to quash a decision which is ultra-vires due to breach of natural justice or other defects in the procedure that was followed by an administrative authority. Under certiorari, the High Court will call up the decision of an inferior tribunal/ authority in order that it may be investigated. If it is found that the decision was made in breach of natural justice or some other procedural defect, it is quashed i.e. it is declared completely invalid so that no one need to respect it once made an order of certiorari is final. The scope of certiorari was discussed in R V Electricity Commissioners, Exp London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 204, where Atkin J stated that, both writs of prohibition and certiorari are of great antiquity, forming part of the process by which Kings Courts restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains a tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or order of the court to be sent to the higher court (Kings Court) to have its legality inquired into, and if necessary, to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction; and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in the ordinary parlance as a court of justice. Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are to subject to the controlling jurisdiction of the Kings Court (this is the same as Ugandas High Court empowered to grant remedies of certiorari and prohibition). It should be noted that these remedies can be invoked by a person.
However, an application for such an order must be made within 6 months of the proceedings in respect of which it is made.(6 months after the decision)
Grounds on which a certiorari application may be made;
1. Breach of rules of natural justice.
It should be noted that the principle of natural justice has been embedded in the 1995 Constitution of the Republic of Uganda and other laws and its one of the non derogable rights. Art. 42 of the 1995 Constitution provides that any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him / her. This is because Art 28 of the 1995 Constitution provides for a right to a fair hearing which is absolute. It provides that in the determination of civil rights and any obligation, or in criminal matter a person shall be given a speedy and fair hearing before an independent tribunal established by law. Accordingly, Article 44 of the Constitution provides inter alia that notwithstanding anything in the Constitution, there shall be no derogation from the enjoyment of the right to fair hearing. The duty to act fairly represents the standard of procedural administrative justice with which they will require compliance. In the words of Megarry V-C in McInnes V Onslow Fane, if one accepts that natural justice is a flexible term which imposes different requirements in different cases, it is capable of applying to the whole range of situations indicated by the terms such as judicial, quasi-judicial and administrative.
In John Bosco Oryem V Electoral Commission and UNEB, Mukiibi J held that the Electoral Commission was a quasi judicial organ by virtue of section 15 (1) of the Electoral Commission Act and its functions are akin to a court or an arbitrator. His lordship observed that if interests of an individual are going to be affected, he must be given a hearing. Where quasi judicial functions have to be exercised by a board or any body of persons, it is necessary and essential that they must always give a fair opportunity to those who are parties in the controversy to correct or contradict any relevant statements prejudicial to their case. Both sides have a right to be heard and a decision in breach of the principles of natural justice is void. His lordship held that the respondent met to discuss the complaints which had been submitted against the petitioner without notifying him that such proceedings were taking place. That the respondent made a decision against the petitioner to disqualify him without informing him or inviting him to defend and as such the respondent acted contrary to natural justice in arriving at its decision. The decision shows how rules of natural justice have been applied in Uganda.
Accordingly, Section 36 of the Judicature Act empowers the High Court to make orders of mandamus, certiorari as well as prohibition. These remedies can be invoked in inter alia where there has been breach of natural justice and the procedure is provided in the Judicature (Amendment) Act. In Cheborion Barishaki V Attorney General, an application for certiorari, mandamus, prohibition and declaration was made by Cheborion. He sought a declaration that his interdiction was made contrary to the principles of natural justice. Katutsi J held that Regulation 36 of the public service regulations granted power to the solicitor to interdict and that there was no non observance of natural justice. Further in Kikonda Butema Farms Ltd V Inspector General of Government, this was an application that sought for certiorari to quash the decision of the IGG, Justice Apio Aweri stated that for an order of certiorari to be made, it must be shown inter alia the respondent acted in excess of his jurisdiction; that there was actual or threatened usurpation of jurisdiction or that there was breach of natural justice, or that an error of law on the face of the proceedings or where the determination was procured by fraud, collision or perjury. That in this case the action of the IGG was justified as he had received a report that government was about to lose colossal sums of money under unclear circumstances, he made a report which was valid. That the IGG was acting within the confines of his (powers) jurisdiction, his decision was valid. That since none of the grounds listed above had been proved, it could not be issued.
The above can be contrasted with the decision in Annebrit Aslund Vs Attorney General, where Katutsi J quashed the URA report because it flouted principles of natural justice. In this case, the applicant who was an employee of URA appeared and testified before the commission of inquiry into allegations of corruption in U.R.A over which lady justice sebutinde had made a report and submitted to the Minister of finance and economic development. The applicant claimed that the lady justice made baseless, biased and false findings that the applicant was incompetent to head a big financial institution like U.R.A and prayed court to grant a declaration that the sebutinde report is a nullity, an order of certiorari in order to quash it and expunge it from archives of public records and an injunction prohibiting any officer from taking action based on the report. At the hearing three points were raised by counsel for the respondents, that the High court was not clothed with jurisdiction to grant the orders sought, that the application was misconceived for want of locus. The court held inter alia that in this case the very fact that the commission of inquiry Act, Cap 166 states that in a few instances, summoning witnesses, the commission was to exercise the powers of the High Court, shows that in other aspects the Commission could not be equated to the High Court even when presided over by a High court judge. A tribunal appointed under the commission of inquiry Act, is an inferior Court within the meaning of rule 1 (2) Order XLII A of the Civil Procedure Rules and subject to the control of the High court through such writs as mandamus, certiorari and prohibition. Secondly, that a cause of action is the fact or combination of facts that give rise to the right of action. The operational words of section 3 of the Judicature (Amendment) Act No. 3 of 2003 are any proceedings or matter which terms are wide enough to include proceedings and report of the commission of inquiry. They do not restrict the cause of action to a final enforceable decision, therefore a remedy for judicial review is concerned not with the decision of which review is sought but with the decision making process. In this case, the application does not confine itself to the relief of certiorari but also seeks a declaration and an injunction. That in the instant case there had been breach of the rules of Natural justice and procedure.
The effect of the above decision is that every tribunal or judicial body should adhere to principles of natural justice. Secondly, the case shows that whenever there is a breach of inter alia natural justice, a specific law has been made that provides a procedure through which an aggrieved person can seek remedy. Accordingly, in Marko Matovu V Mohammed Sseviri, Court held that the audi alteram partem rule is a cardinal rule of natural justice so central to Ugandas system of justice that it must be observed by both judicial and administrative tribunals. Where an administrative agency acts contrary to this rule it exceeds powers conferred upon it by parliament and such decision is void and of no consequence in the same way as a decision made without jurisdiction is a nullity.
In Kaggwa Andrew V Minister of Internal Affairs HC Misc. Application No. 105 of 2002, court held that the Ministers decision would be quashed for the applicant had not been granted a fair hearing, that this violated the principle of natural justice.
2. Excess or lack of jurisdiction on the part of the deciding authority.
3. An error of law on the case on the record or fraud, perjury or duress in procuring a decision.
Nature of remedy of certiorari
The special characteristic of certiorari is that it issues not because of any personal injury to the applicant, but because of the need to control the machinery of justice in the general public interest.In Re-the Milling Ordinance (1954) 2 TLR 192, the Court of Appeal considered the nature of certiorari and observed that certiorari is not an appeal in disguise, it does not involve a re-hearing of the issues raised in the proceedings, it exists to correct an error of law on the face of the record or an irregularity in the proceedings or an absence or excess of jurisdiction where shown.
NB. Make a distinction from an appeal it does not look or hear again issues.
In R Vs Paddington Valuation Officer Exparte peachy property Ltd (1965) 2 ALLER 836, court considered whether there is any need to issue an order of certiorari to a decision which is ultra-vires and why quash it? Although they also held that it is possible to ignore a void order. In this case, a company owning a large number of properties within the Paddington rating areas, sought certiorari to quash the whole of the valuation list prepared for the area. It was argued that chaos would result if the list was quashed, since, until a list could be prepared, no valid list upon which rates could be levied would exist. Denning MR held that such chaos might be ground for not quashing the list immediately, but suspend the operation of certiorari until a new list could be prepared hence certiorari was refused because the valuation officer had not acted erroneously in a way to have the whole list.
PROHIBITION
Is similar to a remedy of certiorari but it is prospective rather than retrospective i.e. whereas prohibition issues to prevent a future act or decision, certiorari issues to quash a decision that has already been made. Typically, prohibition is used to prevent tribunals from dealing with cases over which they have no jurisdiction. Thus, in R Vs Electricity Commissioners Exparte London Electricity joint committee company Ltd (1924) 1 KB 171, prohibition was used to prevent the electricity authority from proceeding with a scheme which was outside its powers. Lords Atkin observed that; "l can see no difference in principle between certiorari and prohibition except that the latter may be involved at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being brought up and quashed on certiorari, then prohibition would lie to restrain it from so exceeding it's jurisdiction"
Excess or lack of jurisdiction
There may be an excess of jurisdiction if the tribunal is improperly constituted, incompetent to adjudicate in respect of the parties, locally or the subject matter of the case. A tribunal may lack jurisdiction if the essential preliminary requirements have been disregarded; or if the proceedings are not properly instituted; or having jurisdiction in the first place, proceeds to entertain matter or make an order beyond its competence. In De Souza V Tanga Town Council [1961] EA 377, certiorari order was issued partly on the ground that a mandatory procedure had not been followed which amounted to an excess of jurisdiction. Further, In Re an Application by Bukoba Gymkhana Club [1963] EA 478, certiorari was awarded to quash the decision of a liquor licensing board on the ground that it took into account irrelevant considerations.
In Pius Nuwagaba V LDC High Court Miscellaneous Application No. 589 of 2005, an application was made by Nuwagaba to quash the decision of LDC in rejecting the application of the applicant and others from Pentacostal University for lack of accreditation by Law Council. While holding that the applicant was a holder of a degree in law granted by a university in Uganda as required by S. 8 of the Advocates Act, Okumu Wengi J stated that the decision of LDC was illegal and irregular and hence the decision would be quashed and an order of prohibition would issue against LDC from treating the Degree of the applicant as not recognised.
Prohibition has also been ordered in the following examples.
In R Vs Kent Police authority exparte Godden (1971) 2 QB 662, a biased adjudicator was prohibited from taking part in the decision. It was held that a doctor who had previously examined a police officer and formed then an opinion that the officer was suffering from mental disorder of a paranoid type, should not subsequently have been appointed to be the dully appointed practitioner to certify whether the officer was permanently disabled from proper performance of his duties requiring compulsory retirement. Such certification was a judicial-type function, requiring both actual and apparent impartiality. In the circumstances suspicion existed that the doctor would be biased to favour his own earlier diagnosis.
In R Vs Electricity Commissioners / exparte London electricity Joint committee Ltd (1924) 1 KB 171 Atkins J "...prohibition restrains the tribunal from proceeding further in excess of jurisdiction. ...certiorari requires the record or the order of the court to be quashed or be sent to a unique court to have its legality inquired into. That both deal with excessive jurisdiction.
R Vs Greater London Council Exparte Black burn (1976) 1 WLR
Prohibition in this case was used to prevent a local authority from licencing indecent firms.
NB. Prohibition can be applied for under many circumstances.
S.43, 51, of J.A Cap 13, which provides for the procedure of applying for prerogative orders
Civil procedure amendment judicial review rules statutory instruments no. 75 of 2003 S.2-5.
Failure to comply with an order of certiorari or prohibition is punishable as contempt of court. Certiorari/ prohibition may be however denied under certain circumstances.
1. Where there is no locus standi, a person must have sufficient interest in the matter for which the application for judicial review relates.
R Vs Hendon Ex parte Chorley (1932) 2 KB 696
R Vs Thames Magistrates Court Ex parte Green Boam(1957)
2. They may be denied where there is an alternative remedy e.g. an appeal would suffice to do with the injustice e.g. where the law provides for a hierarchy of tribunals and appeals lie form one tribunal to another. E.g. under the Land Act, appeals lie from the sub-county tribunals to the district land tribunals. S.38 of J.A provides that where an application for certiorari is made in respect of proceedings which are subject to appeal, and there is a time limit for filling the appeal, the court may adjourn the application for certiorari until the appeal has been determined or until the time for appealing has expired.
In R Vs Chief adjudication officer exparte bland (1985), B applied for certiorari to quash a decision affecting the amount of social security benefit he could get. The decision could have been appealed against through the social security tribunals. The court refused to grant certiorari saying that it could not by-pass the specialised appeals machinery provided for under the law.
3. Certiorari will also be denied where the applicant delays to make the application as happened in the case of R Vs Aston University senate(1969) 2QB 538
4. Also where the applicant waives his right to apply, a waiver will be implied where e.g. a party appearing before a tribunal knows that it was improperly constituted because one of the adjudicators has an interest in the case, but raises no objection at the time of the hearing. Such a party will be excluded from going ahead to apply for certiorari to quash the decision. This was illustrated in R Vs Williams Exparte Phillips (1914) 1 KB 608
What is the difference between prohibition and certiorari?
The two remedies are very similar and they are hand-in-glove. The difference, however, between the two orders is that the order of certiorari operates to quash a decision that has been made in excess of legal authority. On the other hand the order of prohibition operates to prevent an authority from acting in excess of its legal authority before the authority has completed its proceedings or acting on a decision arrived at in breach of either natural justice or legal procedures among others.
NB. Because certiorari and prohibitions are discretionary remedies, the circumstances under which they may be refused are not limited.
MANDAMUS REMEDY
It is an order which compels the performance of a public duty by a public authority. It commands the person or body to whom it is directed to perform a public duty imposed by law. In R V Paddington South Rent Tribunal, exp Milliard [1955] 1 ALLER 691, an order of mandamus was granted against a rent tribunal which had wrongly held that it had no jurisdiction to hear and determine an application properly made to it. The tribunal had a duty to hear cases that fell within its jurisdiction and, as a result of its errors as to its jurisdiction, had improperly declined to hear the case.
It is also a discretionary remedy and court may decline it in cases it deems unsuitable e.g. undue delay on the part of an applicant. In Broughton Vs Commissioner of stamp duties (1889) AC 251, the applicant waited for 9 years to claim a tax refund and sought an order of mandamus to compel the commissioner to grant the refund. The order was denied.
It will also be denied where an equally convenient, beneficial and effectual remedy is available. In Passmore Vs Oswalthwhistle (1898) AC 387; where a complaint to the minister would have been sufficient to deal with the problem. Mandamus was denied because the applicant could have complained to the minister than court.
Where the applicant has no locus standi, mandamus will be denied and the test is whether the applicant has sufficient interest in the matter to which the application relates. In R Vs Inland Revenue commissioners exparte National Federation of self employed and small business Ltd (1982) AC 617, the issue was whether the federation had a sufficient interest to apply for mandamus. The complaint in this case was the failure of the Inland Revenue to collect taxes due from other people. The House of Lords in holding said; that an examination of the tax legislation far from conferring on the tax payer the right to inquire about other people's tax indicated the reverse by reason of the confidentiality of the relationships between the tax payer and the Inland Revenue. The applicant did not therefore have sufficient interest in the matter to complain about the non- performance of the inland revenues duty.
On the other hand, mandamus is available to enforce a wide range of duties. It can issue to compel the proper exercise of discretionary power. In cases where there has been failure to exercise a discretionary power, the order will lie to compel proper consideration of the matter; and in cases where there has been abuse of discretionary power, mandamus will lie to order the exercise of the power properly, according to the law. Thus, in Padfield Vs Minister of Agriculture, Fisheries and Food (1968) AC 997, mandamus issued to require/compel the Minister to exercise his power in accordance with the law. That is, to consider the complaint of the appellants according to the law.
In R Vs Manchester Corporation (1911) 1KB 560; mandamus issued to a local authority to make bye-laws which an existing act required it to make. It may also issue to ensure enforcement of the law by the police.
In R Vs Metropolitan police commissioner Exparte Blackburn (1968) 2 QB 118 mandamus issued to compel the police to enforce the law with regard to breach of gamming laws.
In Shah Vs AG (1970) EA 543,
In R Vs Paddington Valuation Officer and Exparte Peahery Property Corporation Ltd
The applicants applied for prerogative orders of mandamus or certiorari directed to compelling the respondent valuation officer to carry out his statutory duties in relation to the cooperation of the valuation list or to quash the list which had come into force. They contended that the respondent (officer) had ignored his duty to value separately each hereditament. That the respondent had taken into account erroneous consideration i.e. controlled rents etc. Court held that certiorari to quash the decision could not be granted because he had acted in good faith and in accordance with the statute.
GROUNDS OF JUDICIAL REVIEW
1. Ultra-vires.
2. Challenge on jurisdictional grounds i.e. certain defined circumstances.
3. Failure through justifiable statutory power of that agency on which the power has been confined to retain and exercise a free and un fettered power of judgement e.g. a decision maker may operate a self imposed policy unduly strict and so fail to consider each particular instance on it's merits or may have purported to consider himself bound by some virtual / similar undertaking as to how it will exercise it's powers.
4. Manner of exercise of an acknowledged power i.e. improperly used for one or more reasons; having taken irrelevant considerations into account or not of a reasonable authority.
5. Procedural irregularity in exercise of an admitted statutory power. Non- compliance with procedure expressly laid down.
6. Error of law on the face of record (certiorari ground). Lord Diplock in council of civil service union Vs Minister of the civil service (1985) AC 374
NB. Prohibition / certiorari may be denied where the applicant has no locus standi In IRC Vs National Federation Of Self Employed and small business Ltd, Lord Diplock stated' " ... the court should have jurisdiction to grant declaration or an injunction as an alternative to making one of the prerogative orders, whenever in it's discretion it thinks that it is just and convenient to do so, and that this jurisdiction should be exercisable in any case in which the applicant would previously have had locus standi to apply for any of prerogative orders.
NB. What was the position of mandamus, certiorari and prohibition in the past?
In R Vs Liverpool corporation exparte Liverpool taxi fleet operations Association (1972) 2QB299 Lord Denning MR, " the remedies of prohibition and certiorari issue on behalf of any person who is "a person aggrieved" and that includes any person whose interests may be prejudicially affected by what is taking place. It does not include any mere busy body that is interfering in things which do not concern him, but includes any person who has a genuine grievance because something has been done or may be done which affects him." In this case, the taxi owners obtained prohibition to prevent an increase in the number of taxi licences in breach of certain undertakings previously given to them.
EQUITABLE REMEDIES
1. Injunctions
2. Declarations.
INJUNCTIONS
Is a court order requiring the party to whom it is addressed to refrain from doing a particular act? Injunctions are provided for under the rules of equity and there are various circumstances under which they may be granted in administrative law.
1. It may be granted to prevent a public body from acting ultra-vires. In AG V Fulham Corporation (1921) 1 Ch 440, the defendant had statutory power to provide houses which were to be supplied with facilities for washing and drying clothes. Acting under that power, the defendant provided the members of the public with facilities where they could come and wash their clothes. However, the corporation now proposed to provide a laundry service where the washing would be done by special hired employees. The AG contended that such a laundry service contradicted the statute and that the defendant would be acting ultra-vires. The AG sought for and successfully obtained an injunction to restrain the corporation from acting ultra-vires.
2. To prevent a public authority from committing a tort. In Bronbelt Vs Rotherham corporation (1917) 2 Ch 31, an injunction was granted to restrain the defendant corporation from carrying out administration order without a proper hearing of the owner's case.
In Pride of Derby and Derbyshire Angling Association Ltd Vs British Celares (1953 Ch 149, an injunction was granted to prevent a public authority from committing a nuisance i.e polluting a river.
3. To enforce a statute or to secure obedience to the law.
In AG Vs Harris (1921) 3ALLER 207, Harris had been convicted 142 times for selling flowers on the foot path in a forbidden area and his wife had been convicted 95 times. The maximum fine for the offence was just 2 pounds and the Harris always paid the fine but continued to flout the law. C.A said that although each offence was trivial, it was right that the Harris' should be stopped from deliberately flouting the law and an injunction was granted.
NB. An injunction is a discretionary remedy and may be refused under certain circumstances e.g
1. It may not be used to interfere with the processes of parliament.
Bradlough Vs Goset (1884) 12 QB 271
2. It will not be granted where the conduct of the applicant does not merit the remedy since it is an equitable remedy and he who comes to equity must come with clean hands.
Glynn Vs Keele University (1971) 2 ALLER 81
NB. In administration law, there are 2 types of injunction i.e
a) Negative injunction aimed at restraining a person from doing something
b) A positive injunction compelling a person to do something. The positive injunction is not usually resorted to in administrative law because the remedy of mandamus is geared towards compelling public bodies to perform their duties and a positive injunction is sometimes referred to as a mandatory injunction.
Where a mandatory / positive injunction is to be granted, there must be a specific time frame within which the act that is sought to be enforced should be done. Accordingly, a mandatory injunction can not be given to compel a person to do a continuous indefinite act.
In A.G of Kenya Vs Block and another (1959) EA 180, the A.G sought an injunction to compel the defendant to maintain roads in a certain part of Nairobi. The conditions in the defendant's contract did not specify a time period for road maintenance. The court refused to grant an injunction saying that where there was no time limit for doing of the act, enforcing the injunction would be very difficult and would be a burden of the court. In Gravesham Borough Council Vs British Railways Board (1978) Ch 379. Had similar facts but related to maintenance of railway in Gravesham.
3. Court will not grant injunction against government but may only make a declaration on the rights of the parties because it may cause chaos by bringing the machinery of government to a halt.
DECLARATION
Is an order of the court which merely declares what the legal rights of the parties to the action are without them. It has no coercive force i.e. it does not require anyone to do anything.
NB: An application for a declaration can be combined with an application for other types of remedies. It is a particularly useful remedy in administrative law and it is a suitable way to settle disputes with the government because it involves no immediate threat of compulsion but is nonetheless effective. It is a wide range remedy that the court will rarely refuse to grant. Lord Denning In Barnard Vs National Dock Labour Board(1953) 1 ALLER 1113, that," there is no limit to the power to award a declaration except such limit as the court may impose on itself.
In Agricultural Training Board Vs Aylesbury Mushrooms Ltd (1972) 1 ALLER 280
A declaration was obtained to the effect that certain statutory instruments that had been passed were ultra-vires. In Ridge Vs Baldwin, a police officer obtained a declaration that his dismissal was invalid.
All in all, any act of a public authority may be challenged in declaratory proceedings claiming that it is ultra-vires and void.
CIRCUMSTANCES WHERE COURT MAY REFUSE DECLARATION
1. To speculators and busy bodies asking hypothetical questions.
In Russian commercial and industrial bank Vs British bank for foreign trade (1921) 2 AC 438, H.O.L. said; that the question must be read and not a theoretical question, the person raising it must have a real interest to raise it and he must be able to secure a proper contradictor or defendant i.e. some one presently existing who has a true interest to oppose the declaration sought. In other wards there should exist a genuine legal issue between the 2 parties.
In Re Varnato (1949) Ch 258, Court said; declaration can not be awarded to answer academic questions. In that case, the applicant sought a declaration to determine whether if an advance were to be made from a trust fund, estate duty might in certain circumstances be payable. Court held that whereas it might be convenient for a trustee to get such a determination, the court could not award it because if people could go to court merely because they wanted guidance on the orderly of their affairs, they would be no end to the litigation that could follow.
2. Where its result would be to embarrass and prejudice the security of the state.
In Opolot Vs AG (1969) EA 631, the appellant was formerly a brigadier in the Ugandan army and chief of staff. In 1966, he received a letter informing him of his discharge from the army and was subsequently detained under emergency regulations. He sought a declaration that his discharge from the army was invalid and of no legal effect and that he was still a member of the army and chief of staff. Trial judge held; that the right to a declaratory judgement is discretionary and that in exercise of that discretion, he did not consider this a case in which he would be justified in making the declaration sought. On appeal, it was further held that discretionary power to grant a declaration should only be exercised with the greatest caution and where the declaration sought would embarrass and prejudice the state; it will not be granted.
However, it should be noted that the decision in Opolot V AG is no longer good law in so far as it was upholding the common law principle that the crown had the right to appoint and disappoint at any time even without reasons. In Uganda today, such a decision has been overtaken by events and Constitutional provisions. This decision was reconsidered in Fox Odoi V AG.
3. No declaration of specific performance for breach of contracts of employment. If an employer wrongfully dismisses an employee, the employee can only seek damages and can not obtain a declaration that his / her dismissal is a nullity because in that case the employment would still continue.
The rationale is that under common law, the master always has power to dismiss the servant. However, in the field of public employment or service, public authorities must keep within the limits of the powers given to them by statute. Accordingly, where a public servant is dismissed in contravention of the relevant law, he/ she may obtain a declaration prolonging their employment.
See what is what is in; Ridge Vs Baldwin (1964) A 40
Cooper Vs Wilson (1937) 2 KB 309
Vine Vs National Dock Labour Board (1957) AC 488
4. If it's effect would be to usurp powers of the body in question.
In Shah Vs Barnet London Borough Council, the council refused to give Shah a grant to attend university on the ground that he was not ordinarily resident in the council. Shah sought a declaration to the effect that the council had made an error and that he should be awarded the grant. Court held that a declaration was not the appropriate remedy in the circumstances as it would usurp the council's powers to grant or deny an applicant a grant.
5. For a matter which is not within the realm of law, i.e. political matters that are not clearly defined and regulated by specific legal provisions. This was held in the case of Malone Vs Metropolitan Police.
DAMAGES
A person aggrieved by the act or decision of a public authority which amounts to a tort or a breach of contract can sue the government or authority for damages in the accordance with the government proceedings Act Cap 77.
Damages can be classified into 3 types.
1. Special / Specific damages.
These can be claimed in respect of matters whose value can be quantified and specifically proven e.g. through receipt for goods and services issued to the plaintiff.
In Kafumba Mukasa Vs AG (1980) HCB, Court held that without receipt or other specific proof, a cause of action for specific damages may not succeed.
2. General damages.
Are damages which can not be specifically ascertained, they include compensation awarded for pain and suffering, inconveniences, loss of future prospects. In Departed Asians Property Custodian Board Vs Kayondo (1982) HCB 1, Court held that general damages are awarded at the discretion of court.
3. Exemplary damages.
These are awarded as a deterrent or punishment of the defendant where the defendant's conduct has been oppressive and arbitrary e.g. in cases of false imprisonment.
Obong Vs Municipal Council Of Kisumu(1971) EA
NON-JUDICIAL REMEDIES
These are remedies which are not obtained from court.
-I.G.G
-Commissions of inquiry
-Uganda Human Rights Commission
Commissions of inquiry
These are administrative bodies which are adopted or constituted to investigate any matter of public concern.
Statutory Instrument of commission of inquiry Acts.
Art 99 provides for delegation of powers; ministers can act for the president.-when an allegation has been made e.g accident
2000- Rampant closure of banks and certain recommendations made.
1999- Rampant corruption of police force-certain heads e.g Bakiza etc. Justice Julia Sebutinde.
Exploitation of Congo resources -led by Justice Porter
Recent corruption in URA- Sebutinde
Who heads it?
- Its headed by a judge of Supreme Court and assisted by some persons who may be senior lawyers.
-Technicalities may require reknown and knowledgeable people.
-Lead counsel
-Secretary to the minister.
An instrument signed by the authority and should be gazetted to give it legal backing (S.15 of C.I.A) and it indicates terms of reference- subject matter and area to cover e.g corruption in URA.
Duration of the inquiry
S.1 (2) CIA
- Empowered to call witnesses and question them e.g in writing S.9 -commissioners are given powers of high court
-Can charge for contempt of court.
-Act impartially and fairly-observe rules of National justice. (Aslund V A.G) S.6 CIA --S.4
-Make recommendations / report and signed by commissioners (Justice Katsusi in Aslund Vs A.G)
- To freely adopt their own rules of procedure to guide them in conduct of their work.
Benefits;
1. They allow some things which could not be handled by court because of their informality, political nature, etc to be expeditiously handled.
2. Held in public and are therefore open to everybody.
3. Can lead to other remedies being granted.
Failures;
-Ineffective reporting and implementation e.g commission of inquiry of minerals in Congo and gold scandal during Obote 1
-No powers to punish.
-Stigmatisation of individuals
-Expensive yet often underfunded.
-Temporary therefore continuous existence of the problem hence partial solutions are provided.
-Political influence (undue influence from the state)
Quorum S.1
Aslund Vs AG -quorum was the chairperson and any of the 2 commissioners but 2 minus chairman is invalid.
JUDICIAL REVIEW
The role of administrative law is to ensure that public officials exercise their functions for the sole purpose of attaining the objectives of the relevant legislation. All public officers derive their authority from legislative enactments. Their duty is therefore to give effect to the provisions of those enactments.
- This is done through exercising powers which they have i.e. they must act intra-vires. They are also expected to follow established procedures and these are necessary because of the requirements of transparency, consistency, uniformity and fairness.
- Public Administrators are also expected to put in effect the principles of Natural Justice whenever they are called upon to adjudicate over rights of persons.
- Public Administrators are also expected to exhibit a high degree of honesty, uprightness and to avoid all forms of bias i.e. exercise public powers for public purposes/ to promote private interests whenever a public officer fails to act in a manner which promotes public interest, administrative law may be involved to correct that situation. A person who is aggrieved by an act / decision of a Public Officer has various options under the law.
1. An ordinary suit against a public officer or government or government department.
2. Reference to an administrative tribunal if there is a tribunal set for that purpose e.g. land matter, tax appeals.
3. Make an appeal to the relevant organ.
4. An application for judicial review.
5. Seek non judicial remedies through established agencies e.g. IGG, public service commission and others.
Art.42 provides that all persons who appear before Public Officers or bodies are entitled to the following;
-fairness
-justice
-access to courts whenever a person feels cheated
The judicature act gives general rights relating to access to remedies in courts.
S.13 JA provides that high court shall have unlimited jurisdiction over all matters in Uganda that implies that the high court can entertain any complaint and can hear all disputes.
The J.A also provides that the high court is vested with the powers which were vested in the high court immediately before the commencement of that act i.e. high court enjoyed powers to review judicial decisions and hence the above powers. S.33 provides that the high court may grant such remedies as it deems fit in any legal or equitable claim therefore high court can give remedies in respect of complaints against public officials. High court is also given powers to give specific remedies which can not be obtained from any other court e.g. remedies of Habeas corpus, mandamus, certiorari and prohibitions (prerogative remedies) and can only be obtained against public officials.
When can courts intervene in administration decisions passed by public authorities? It is a general rule that courts are not expected to interfere with administration decisions unless there is justification for such interference. Courts of law are not expected to judge the movements relating to particular decisions. They are only expected to intervene in the following circumstances.
1. Where power is exercised by the wrong authority/ ulta-vires principle.
2. Where the relevant procedures are not adhered to / respected.
3. Where there is abuse of discretionary powers.
4. Where principles of national justice are ignored.
Under common law the areas of judicial intervention in the administration process have been formulated as including the following;
1. Illegality-ultra-vires
2. Irrationality- abuse of discretionary powers
3. Procedural impropriety - failure to follow procedures.
NB. These remedies (of judicial review) are only available after exhausting the local remedies as provided under S.38 JA.
Council for civil unions Vs minister for civil service (1985) AC 374
Qn. Distinguish between appeals and judicial review
1. Appeals are statutory; available through some legal provisions. Where there is no law providing for right of appeal, the remedy is not available to an aggrieved person. Where there is a right to appeal, the aggrieved party is expected to exhaust that right of appeal before going to courts of law. Where there is no right to appeal the aggrieved party may apply to court of law to seek redress through judicial review.
2. Appeals are usually on the merits i.e. the argument whether a particular decision was wrong or right. While judicial review is usually about the process leading to the decision.
3. Grounds on which an appeal can be made are provided for / contained in the statute which provides for an appeal therefore no other grounds than the specified ones in the statute. While judicial review is available on those grounds of illegality, irrationality and procedural impropriety. In Karimari Corner Bar and Restaurant V Embu Liquor Licensing Board (1967) EA 426, the grounds for appeal which were stated in the statute were restricted to refusal to renew or transfer a licence. In the instant case, the appeal was based on refusal to grant a new licence. The appeal failed because the ground of refusal to grant a licence was not one of those grounds from which an appeal would lie or would be lodged.
4. An appeal may also be restricted by time limits. Judicial Review is however normally open and can be brought at any time. In an application of Punja Shah, the statute provided for the time limit of 21 days in which an appeal could be made. The decision which was subject of complaint was communicated after expiry of the period in which the appeal could be made. In such circumstances an appeal can not be made unless there is a waiver of the time limit. The court however may exercise it's discretion to review this matter on its own merits.
5. Judicial Review results into specific public law remedies i.e. mandamus, certiorari and prohibition. An applicant for judicial review must be aiming at any of those remedies. If the applicant is seeking other remedies like damages, injunction, specific performance; Judicial Review is not the option.
6. The appropriate appellate court/ body is normally indicated in the statute e.g. in tax matters, there is a tax appeals tribunal for appeals from decisions of URA.
7. On the other hand, Judicial Review is only available in the High Court in accordance with provisions of Judicature Act and the Amendments thereof.
Question
1. Who can be a subject of judicial review?
The panel of takeovers and mergers exparte dateline (1987) QB 17
2. What is a public power? (One that exercises public authority).
In R Vs Disciplinary Committee of Jockey Club Ex parte Aga Khan (1993) 1 WLR 909, This issue concerned whether the decision by the club's disciplinary committee of disqualifying a race winning horse from race and finishing the trainer for alleged prevalence of obtained substance in the race winner's would be amenable to judicial review. Court held, in dismissing the appeal, that although the jockey club exercised administration control over racing activities in Great Britain , its powers and duties were in no sense governmental or derived from the actual relationship between the club and those aggrieved to be bound by the rules of racing; that such powers gave rise to private rights enforceable by private actions in which effective relief by way of declaration , injunction and damages are available and that accordingly , the club's decision was not amenable to judicial review.
In the same case it was noted that; under common law there is a series of precedents which give courts powers to interfere with decisions of administrative officials. It is a general principle that courts are not expected to substitute themselves for administrative agencies i.e. courts should not be normally concerned with merits of administration decision. However, common law recognises that courts have a role to play where rights of persons are interfered with by administrative officials.
Under common law, courts have removed the other grounds for judicial review and it is only available in the following circumstances;
1. Procedural impropriety
2. Abuse of discretionary powers
3. Acting ultra-vires (illegality or acting beyond powers)
In Aluminium and Industrial works Ltd Vs Minister of Agriculture; Court stated interalia; that the court should be guided by consideration not whether the administrative agency was right but whether it is wrong. Appeals are concerned about correcting what is wrong.
-it's the duty of the applicant to satisfy court that the decision was wrong. Such consideration of right and wrong do not apply to judicial review"
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