PROCEEDINGS AGAISNT THE GOVERNMENT
Robertson v. Minister of Pensions (Contract)
This case involved a promise of a Minister of Pensions to a serving army officer based on an
assurance that his disability was attributable to military service. Following the decision in
Central Property Trust ltd v. High Trees House Ltd, Lord Denning stated that the promise was
binding as the prior decision of the Minister stopped him from revoking a pension order in
favour of the applicant.
Amphitrite v. the King, where the British government contracted to fetter its executive action in
respect of a ship when it reached the port. The Court held that it is not competent for the
government to fetter its future executive action which must necessarily be determined by the
needs of the community when the question arises.
Sengendo v Attorney General, the plaintiff sued for personal injuries arising from an attack by
soldiers on a highway few hours on an assassination attempt on the President. The AG sought to
distinguish the government from liability on reliance of r6 of the Government Proceedings Act
which barred a default judgment against government without a defence, but the Court held that a
judgment in default of pleading by the government is prohibited but not judgment after hearing.
The AG was held vicariously liable for the acts of the soldiers.
Attorney General v. Oluoch, where the government appealed the award of damages in respect
of a wrongful arrest and detention by two magistrates and a police officer. The argument of the
Attorney General was upheld that no suit lies against the Government in respect of acts done in
the discharge or purported discharge of judicial functions. This is by virtue of section 4 (5) of the
Government Proceedings Act.
Kigoya v. Attorney General of Uganda, the plaintiffs sought an application for judgment in
default of appearance by way of notice of motion. It was in respect of damages for false
imprisonment and malicious prosecution. The Court held that the applicant’s application for
judgment was premature and misconceived and was also not properly before the court for want
of compliance with r. 6 of the Civil Procedure (Government Proceedings) Rules, 1959, since the
application was brought by motion instead of by summons.
COMMISIONS OF INQUIRY
The power of inquiry, Duncan v. Cammell Laird & Co, where the appellants sought a
disclosure and inspection of documents in the possession of the defendants before a Court of
Inquiry. (The action was based on an inquiry into the sinking of a submarine) The respondents
objected to production of the documents claiming it would be injurious and prejudicial to public
interest.
The facts were that a submarine which was built by the respondents, during a trial dive sunk to
the bottom and failed to return to the surface. A large number of suits were proceeded against the
respondents for negligence. The plaintiffs contended that since the documents sought were part
of an inquiry, it was not precluded from availing the documents for inspection.
The order of discovery is not available against the Crown. The better opinion is that all
proceedings against the government. The minister, or head of government department can not be
compelled to give evidence of the documents or papers within the possession of the Crown.
It was upheld that the principle to be applied in every case is that documents otherwise relevant
and liable to production must not be produced if the public interest requires that they should be
withheld. This test maybe satisfied either (a) by having regard to the contents of the particular
document (b) by the fact that the document belongs to a class which, on grounds of public
interest, must as a class be withheld from production.
Hennessy v. Wright, where the plaintiff , a governor of the colonial state sued for libel against a
newspaper publisher for statements that the governor was sending garbled report to the Colonial
Secretary. The Colonial Secretary instructed the Governor to object to an order of discovery by
the defendants on grounds of public policy as the matters were prejudicial to public interest and
public service.
Fear of injury to the public service can be a ground for objecting to an order of inspection against
a government department. And an inquiry in public may do all the mischief it is proposed to
guard against. It was held that the question of whether the production of documents would be
injurious to the public service, must be determined, not by the judge, but by the head of the
department having the custody of the paper. That the administration of justice is only a part of
the general conduct of the affairs of any state or nation, that the general welfare of the
community overrides the need or lack thereof, to produce the documents before court of inquiry.
National defense, good diplomatic relations, proper functioning of the public service are good
grounds for objecting to production of documents.
It follows from the authorities that crown privilege in respect of documents is a recognized as of
right to bar admission of certain evidence to the prejudice of public interest.
Daymond v South West Water Authority, it was a sewerage and rating case challenging the
right to charge property not connected to public sewer whether the demand of charge was
lawful? The plaintiff whose property was not connected to main drainage and was 400 yards
from the nearest sewer, received from the first defendants, the rating authority acting on behalf
of the second defendants, the water authority a demand for sewerage services. The plaintiff
contended that the Water Act (Collection of Charges) was ultra vires in respect of charging for
services that were not supplied. The better opinion is that a petitioner can avail themselves of
ultra vires doctrine for administrative actions by contending that they were not legislated or are
beyond the scope of what the parliament prescribed. The Parliament can interfere with
administrative action of public authorities upon petition or inquiry in respect of actions which are
ultra vires. It follows from the authorities that the intervention of courts is necessary as a final
arbiter between the citizen and the public authority. However, in cases like in Daymond v South
West Water Authority, the court took cognizance of the statute of parliament.
Regina v. Local Commissioner for Administration, where the applicant, a mother of two, left
children in the care of a neighbour for a month. Consequently the authority took the children into
their care by way of allocating them to different foster parents and the mother whereupon applied
to have children back. The complainant applied for relief to the local councilor who she asked to
forward the complaints to t he Local Commissioner about maladministration. The local authority
applied for an order of prohibition to bar investigating the allegations of maladministration. Lord
Denning stated that the effect of section 26 of the Local Government Act was to entitle the Local
Commissioner to investigate a complaint of injustice as a result of inefficient or improper
administration. The better opinion is that investigative powers are another form of non-judicial
remedies for correcting the faults and maladministration of public officers. This office of
investigation is connected to the ombudsman. There is the local ombudsman and the
parliamentary ombudsman.
In Uganda’s context, there is the parliamentary ombudsman of COSASE which stands for
Committee on Statutory Authorities and State Enterprises which has an investigative function
over government departments. On the other hand,, the local ombudsman for local governments is
shown in section 88 of the local Government Act which provides for Local government public
accounts committees to investigate and oversee the financial administration of the local
government. Most importantly, the functions of the Inspectorate of Government provided for
under section 225 of the 1995 constitution. Section 87 of the Local Government Act provides the
investigative powers and supervision of the Auditor General over local governments. In the same
vein, the Chief Accounting Officer of the district has investigative and checking powers of all
administration and financial transactions in the district.
In re Complaint Against Liverpool City Council, this case involved a complaint by a foster
parent concerning removal of child from their care-but the authority sent notice that disclosure of
confidential records is contrary to public interest. There was a complaint of maladministration
against the local authority whereupon the local ombudsman sought production of documents
(records). The authority objected to the production of documents on grounds of public
convenience.
