Administrative Law Notes-1

BAZIRA ANTHONY.L.L.B.2.UGANDA CHRISTIAN UNIVERSITY.
RESEARCH
SERIES
Topic 1
NATURAL JUSTICE
Administrative law developed to play 2 major roles in public
administration.
1. To promote efficiency in administration.
2. To promote the rights of individuals in society by checking the abuse of
power.
It is therefore important that in running public affairs efficiently, public

authorities should have due regard to individual rights. Administrative
law has therefore developed a number of safeguards against the possible
abuse of power. An individual who is aggrieved or likely to be
detrimentally affected by an administration action may obtain redress for
his / her grievance and forestall any injustice likely to be done using
various methods provided under the law.
Brief background
Natural justice is a legal philosophy used in some jurisdictions in the
determination of just, or fair, processes in legal proceedings. It is
sometimes taken as a process of rational logical deduction. The concept is
very closely related to the principle of natural law (Latin expression of jus
naturale) which has been applied as a philosophical and practical
principle in the law in several common law jurisdictions, particularly the
Compiled By Bazira Anthony LLB 2 Page 1

BAZIRA ANTHONY.L.L.B.2.UGANDA CHRISTIAN UNIVERSITY.RESEARCH
SERIES
UK and Australia. According to Roman law certain basic legal principles
are required by nature, or so obvious that they should be applied
universally without needing to be enacted into law by a legislator. The
rules or principles of natural justice are now regularly applied by the
courts in both common law and Roman law jurisdictions. Natural justice
operates on the principles that man is basically good, that a person of
good intent should not be harmed, and one should treat others as one
would like to be treated.
Definition and principles

Natural justice may be simply defined as the natural sense of what is
right and wrong. It has also been referred to as fair play in action. It has
been recognised since time immemorial that delegation of functions is
accompanied with designed procedures to reconcile administration needs
with safeguards for the individuals; this entails among others principles
of natural justice. In Local Government Board Vs Arlidge [1915] AC
120, House of Lords held that the common law rules of natural justice
required little more from a department than the carrying out in good faith
of its usual procedures. The brief facts of this case were that a
Hampstead council had made a closing order in respect of a house which
appeared unfit for human habitation. The owner appealed to the local
government board as prescribed by the housing and town planning Act. A
public inquiry was held which confirmed the closing order. Arlidge applied
to court contending that the decision was invalid because the board did
not disclose which official actually decided the appeal. That Arlidge had
not been heard orally by that official and had not seen a report of the
inspector who conducted the inquiry. While rejecting the contention, the
House of Lord held that parliament having entrusted judicial duties to
the executive body, must be taken to have intended to follow the

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procedure which was its own and was necessary if it was capable of doing
its work efficiently. So long as the officials dealt with the question referred
to them without bias and gave parties adequate opportunity of presenting
the case, the board could follow its own established procedures even
though there not of court
of law.
The right to a hearing in accordance with the rules of natural justice may
be expressly provided for or the courts may imply such an obligation
exists under common law. There are essentially two sections to the rules
of natural justice; the first being derived from the Latin maximum "audi
alteram partem" (let the other side be heard). This is the duty to allow
persons affected by a decision to have a reasonable opportunity of
presenting their case. The essence of this principle is that in certain
contexts, prior to a decision being taken in the exercise of statutory power
which may adversely affect the interests of individuals, those individuals
should be alerted to the fact of, and the reasons for, the impending
decision or action, and be permitted reasonable opportunity to make
representations.
The second part of the rules of natural justice is derived from the Latin
maxim "nemo judex in causa sua" (no one can be the judge in his own
cause). The essence of this principle is to disqualify persons having an
interest in a matter over which they are presiding, or in respect of which
there may be an appearance of bias, from taking certain types of
decisions, thus rendering void such any decision taken in breach of the
principle of natural justice. This gives rise to a duty to act fairly, to listen
to arguments, and to reach a decision in a manner that is untainted by
bias.

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According to A. de Smith in his book Judicial Review of Administrative
Action, "...The governing principle ought to be that authorities
empowered to make decisions that are seriously detrimental to the liberty,
proprietary rights, livelihood, status or reputation of individuals should
be required to give prior notice and opportunity to be heard to those who
are directly affected, except where the imposition of such duties would be
impracticable or manifestly contrary to the public interest or
Parliamentary intent..."1
It should be noted that the principle of natural justice has been

embedded in the 1995 Constitution of the Republic of Uganda and its one
of the non derogable rights.
1
The basic principles entailed in natural justice may be summarised as including the following;
a). Individuals should be provided notice, in sufficient detail, as to the scope of the hearing and the
allegations against such individual and/or any negative information to fairly enable the individual to show
any error that may exist;
b). The hearing should be held within a reasonable time after the notice has been provided;
c). The information should have an opportunity to be heard and reply to the allegations and/or negative
information;
d.) The individual should be entitled to question witnesses, especially those giving evidence against the
individual;
e). The individual should be entitled to call witnesses;
f). The individual should be entitled to request an adjournment or postponement for a reasonable period of
time, especially if the individual or one of the individual's witnesses has a legitimate inability to attend;
g). The persons hearing the matter should be possessed of a reasonable level of expertise relative to the
matters being dealt with. In a University setting, this would meant that faculty, staff and students would
constitute the Hearing Committees, as appropriate, and would possess sufficient knowledge of University
issues to bring to the tribunal the necessary expertise:
h). The Committee hearing the matter has a duty to approach the hearing with an open mind, listen fairly to
both sides, and to reach a decision untainted by bias;
i). Members of the hearing panel should ensure that grounds for setting aside the hearing on a reasonable
apprehension of bias do not exist, and they, therefore, should absent themselves if there is a special
relationship or association with the individual appearing before the hearing;
J). A record of the proceedings of the hearing should be kept;
k). The individual should be provided with a copy of the record or at least a summary of the evidence of the
proceedings;
l). The individual should be provided with a copy of the hearing committee's decision or recommendations,
together with the reasons;
m). In cases concerning discipline, where a decision is made and the consequences of the finding may have
serious consequence on an individual's future, consideration should be given to permitting the individual to
make submissions as to the penalty;
n). Depending on the seriousness of the allegations and the consequences of a negative decision and the
complexity of the issues involved, the individual may be entitled to representation or legal counsel, but there
is no absolute right to such counsel. NB. These are general guidelines and not law as such.

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Art. 42 of the 1995 Constitution provides that any person appearing

before any as 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 fortified by
Art 28 of the 1995 constitution, which provides for a right to a fair
hearing. It provides that in the determination of civil rights and any
obligation, or in criminal matter a person shall be given a fair, 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 VC in
McInnes V Onslow Fane [1978] 3 ALLER 211 at 219, ‘…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.’
As a result, judicial review may be instituted on grounds of denial of

natural justice and in such cases the court will mainly get concerned with
the procedure by which the administration authority reached a particular
decision. The principles / rules of natural justice have there origin in
common law but they have also been codified under various statutes.
Judicial review refers to the power of the High court to exercise control
and supervision over the legislative, executive and judicial powers of
administrative bodies, by review it is means the reconsideration of the

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action or decision of the authority with a view to determining whether it
acted in accordance with the law and whether it acted in accordance with
the people's natural justice. The court will be concerned with whether the
authority acted in accordance with provisions of the law under which it
purported to have acted or whether or not it was biased or whether the
authority gave the aggrieved party the opportunity to present its side of
the case. In this regard, the remedies the court can grant are;
a) Certiorari
b) Mandamus
c) Prohibitions
Certiorari issues to quash the decision of the authority. Mandamus issues

to command the authority reconsider the matter all over again in
accordance with the law. Prohibition issues to command the authority not
to proceed further in acting illegally. The court can also make orders
declaratory of the rights of the parties and whether the authority has
acted illegally. 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, quasijudicial, 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 the lawful authority is not abused by unfair treatment and not to
attempt itself the task entrusted to that authority by law.

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THE RIGHT TO NATURAL JUSTICE ANALYSED
A fair hearing
The principle of natural justice is expressed in Latin as “audi alteram
partem” which is translated as “hear the other side." Elaborate rules
have been laid down to ensure that a party to any proceedings can be
heard. In Grimshaw V Dunbar 1 Q.B 408 at 416, Jenkins L.J said, ‘‘…a
party to an action is prima facie entitled to have it heard in his presence;
he is entitled to dispute his opponent’s case and crossexamine his
opponent’s witnesses and his own evidence before court. …that a litigant
who is by mischance or accidentally absent the common justice demands
that he/she should be allowed to come to the court and present his case.’’
Generally it means that no body shall be penalised by a decision of an
administrative authority or tribunal unless he / she has been given fair
opportunity to answer the case against him / her and to put his / her
own case. In Annebrit Aslund Vs Attorney General HC Miscellaneous
cause No. 441 of 2004, 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
application for judicial review was brought under section 3 of the
Judicature (Amendment) Act No. 3 of 2003. 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 removing the report into the High court 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

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sought, that the application was misconceived for want of locus. The
court held as follows,
1. 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.
2. Held 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.
3. Held that locus standi refers to the right to be heard in court or
other proceedings. The applicant was granted leave to apply for
review. Under Order XLIIA of the Civil Procedure Rules, the court is
not to grant leave unless it considers that the applicant has
sufficient interest in the matter to which the application relates.
4. Held that in the instant case there had been breach of the rules of
Natural justice and procedure.

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Further, in Ridge Vs Baldwin (1964) AC 40 the plaintiff had (chief
constable of Brithom) had been prosecuted and acquitted on charges of
conspiracy to obstruct the course of justice. The Brithom watch
committee which was responsible for enforcing discipline in the police
force purported to dismissed the plaintiff from his post, without giving
him any prior notice or hearing and applied to court contending that his
dismissal was invalid. Court held that the decision was void due to
breach of the principles of natural justice. Lord Reid stated that ‘…the
principle of audi alteram partem goes back many centuries in our law…
an officer cannot lawfully be dismissed without first telling him what is
alleged against him and hearing his defense or explanation.’
NB. Importance of the above case

i. The significance of Ridge V Baldwin is that it helped to free both
the substantive rules of natural justice from strict limitations
which had been imposed in earlier decisions, in particular from
the requirement that the decisionmaking body must be under a
duty to act judicially and also the remedy of certiorari. The
decision in the case may be compared with that in Nakkuda Ali
V Jayaratne [1951] AC 66 (in this case the privy council had
held that the controller of textiles in Ceylon had no duty to act
judicially in exercising his power to revoke licences to deal in
textiles, this was because at that time, certiorari could only lie
against agencies which were under a duty to act judicially),
which was disapproved in Ridge V Baldwin. The House of Lords
made it clear that this duty to ‘act judicially’ arose directly from
the power of an agency to ‘determine questions affecting the
rights of subjects’, i.e. the potential effect of the exercise of the
power on the citizen’s interests, generates both audi alteram

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partem obligation and also the applicability of certiorari.
ii. The application of the rules of natural justice to cases involving
dismissal from employment has been extended since Ridge V
Baldwin and has now become a rule of general application.
iii. The requirements of a fair hearing depend on all circumstances.
They include; a right to notice, but restrictions may be placed
where public interest so requires, the right to legal
representation or make representations, whether in writing or
orally and where an oral hearing is held, the right to comment
on any evidence presented, where evidence is given orally by
witnesses, the right to put questions to those witnesses.
In Cooper Vs The Wandsworth port of works (1863), the port of Worth
demolished the plaintiff's house without giving him prior notice or an
opportunity to make representations on his own behalf. The plaintiff's
action succeeded and he obtained damages for trespass. The court
emphasised that even where the statute applicable, doesn't specifically
provide for notice or for an opportunity to be heard a public authority is
under a duty to apply the rule of natural justice.
Contents of a right to a fair hearing

1. Notice must be given in adequate terms so that the prospective victim
knows the essence of the case he has to meet and can prepare his answer
properly. In Desouza Vs Tanga Town council, court held that notice
should include the substance of the allegations of the charge and it must
specify the time and place where the hearing is to take place.
A similar issue arose in Patel Vs Plateau Licensing
2. The parties must be given the opportunity to adequately present their

case. This includes the right to have the matter adjourned if injustice

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would otherwise. In Kanda Vs Government of Malaysia, Lord Denning
stated “if the right to be heard is to be real, it must carry with it a right in
the accused man to know the case which is made against him. He must
know what evidence has been given and what statements have been made
affecting him and then he must be given a fair opportunity to correct or
contradict them." See also In Re M an infant (1968) I WLR I 1897.
3. The administrative authority has a duty to afford an oral hearing but in

some cases representations may be made in writing. In Chief Constable
of the North Wales Police V Evans [1982] 1 WLR 1155 HL, the Chief
constable of North Wales decided that Evans, a probationer constable in
the force, should be required to resign or, if he refused, be discharged
from the force. Evans resigned but subsequently challenged the decision
on the ground that it was taken in breach of natural justice because he
was not given an opportunity to offer any explanation. The House of Lords
agreed with the decision of Court of Appeal that there had been a breach
of natural justice, but in the light of comments made in the Court of
Appeal, felt it necessary to make some comments on the scope of judicial
review.
R Vs Local government Board Exparte Arlidge (1914) I KB 160

R Vs Immigration tribunal Exparte Mehmed (1977) I WLR 795
4. It also includes allowing all witnesses to be called to their respective

parties and giving each party to cross examine each party's witness. In
Ceylon University Vs Fernando (1960) I WLR 223, Supreme Court held
that failure to afford audience or allow witnesses to be questioned / cross
examined breached the principles of natural justice and therefore the
report of the chancellor was null and void.

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In Dent V Kiambu Liquor licensing Court [1968] EA 80, while noting

that licensing courts were not mere executive bodies buts courts from
which an appeal would lie to the High Court and must be conducted in a
manner appropriate to judicial tribunals, held that this requires that
there is a requirement of production of proof of any matter referred to in
evidence on oath or affirmation upon which the opposing party may put
questions in crossexamination.
In R V Board of Visitors of Hull Prison, exparte St Germain [1979] 1

WLR 1401, in this case, following a riot in Hull prison in 1976, numerous
charges of breaches of the prison rules were heard by the prison’s board
of visitors. During the hearing reference was made to a number of
statements by prison officers, who were not available to give evidence, to
support the evidence given by a witness. Seven of the prisoners who were
found guilty of the offences against prison discipline sought an order of
certiorari on grounds that the proceedings before the board of visitors
breached the rules of natural justice, to wit, that hearsay evidence was
taken into account. While acknowledging that it is common ground that
the board of visitors should base its decisions on evidence, the issue that
arose was such evidence was restricted to that which was admissible in a
criminal court of law? Geoffrey Lane LJ held that there was no
restriction. (This view was also expressed by the Privy Council in Ceylon
University V Fernando [1960] 1WLR 223 at 234). The lord justice stated
that, it is the entitlement of the board to admit hearsay evidence is
subject to the overriding obligation to provide the accused with a fair
hearing. That depending upon the particular facts of a case and the
nature of the hearsay evidence provided to the board, the obligation to
give the accused a fair chance to exculpate himself, or a fair opportunity

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to controvert the charge or a proper or full opportunity of presenting his
case and may oblige the board not only to inform the accused of the
hearsay evidence but also to give the accused a sufficient opportunity to
deal with that evidence. Further, that depending on the nature of the
evidence and the particular circumstances of the case, a sufficient
opportunity to deal with the hearsay evidence may well involve cross
examination of the witnesses whose evidence is initially before the board
in the form of hearsay. Accordingly, court quashed the findings of guilt
based on hearsay evidence by the order of certiorari.
5. Means that all relevant information from whatever source it may come
should be disclosed to a person who may be prejudiced by its
concealment. However, does the kind of evidence admissible have any
limits? In R Vs Deputy industrial injuries commissioner Exparte
Moore (1965) I QB 456, at 488 Diplock LJ stated that, ‘technical rules of
evidence, however, form no part of the rules of natural justice. The
requirement that a person exercising quasijudicial functions must base
his decision on evidence means no more than it must be based upon
material which tends logically to show the likelihood or unlikelihood of
the occurrence of some future event the occurrence of which would be
relevant. It means that he must not spin a coin or consult an astrologer,
but he may take into account any material which, as a matter of reason,
has some probative value in the sense mentioned above, the weight to be
attached to it is a matter for the person to whom parliament has
entrusted responsibility of deciding the issue.
In R V Army Board of the Defence Council, exparte Anderson [1991]

3 W.L.R 42, in this case the applicant was a former soldier who alleged

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that he had been subjected to forms of racial abuse which caused him
to go absent without leave. The papers relating to the complaint were
seen separately by two members of the army board who reached
individual conclusions that, although there was some truth in the
applicant’s claim, there was no basis for making an apology to him or
awarding him compensation. The applicant’s request for disclosure of
documents relating to investigations into his complaint was refused, as
was his request for an oral hearing. He applied for judicial review.
Taylor LJ. Stated that a body required to consider and adjudicate upon
an alleged breach of statutory rights and to grant redress when
necessary seems to be exercising an essentially judicial function and as
such is required to follow the rules of natural justice. While refuting the
submission of defendant’s counsel that the Army board’s duty of
fairness required no more than that it should act bona fide, not
capriciously or in a biased manner, and that it should afford the
complainant a chance to respond to the basic points put against him,
noted that the Army board was bound by its procedures achieve a high
standard of fairness more than it had asserted. The Lord Justice laid
down the principles as follows;
i. There must be a proper hearing of the complaint in the sense
that the board must consider a single adjudicating body, all
the relevant evidence and contentions before reaching its
decisions. That it is unsatisfactory that the members should
consider the papers and reach their individual conclusions in
isolation and, perhaps as here, having received the concluded
views of another member.
ii. That a hearing does not necessarily have to be an oral hearing
in all cases. There is ample authority that decisionmaking
bodies other than courts and bodies whose procedures are laid
down by statute are masters of their own procedure. Provided
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that they achieve the degree of fairness appropriate to their
task it is for them to decide how they will proceed and there is
no rule that fairness always requires an oral hearing.(restated
in Local Government V Arlidge [1915] AC 120 at 132133 and
Selvarajan V Race Relations Board [1975] 1 WLR 1686 at
1694). That whether an oral hearing is necessary will depend
upon the subject matter and circumstances of the particular
case and upon the nature of the decision to be made. That it
will also depend upon whether there are substantial issues of
fact which cannot be satisfactorily resolved on the available
written evidence. That this does not mean that, whenever there
is a conflict of evidence in the statements taken, an oral
hearing must be held to resolve it.
iii. The opportunity to have evidence tested by crossexamination
is to be observed. But in this case, it was within the discretion
of the army. The discretion whether to allow it will usually be
inseparable from the decision whether to have an oral hearing.
That the object of the latter will be to enable witnesses to be
tested in crossexamination, although it would be possible to
have an oral hearing simply to hear submissions.
iv. That whether oral or not, there must be what amounts to a
hearing of any complaint. That in this case it meant the Army
board had to give such a complaint investigated, consider all
the material gathered, give the complainant an opportunity to
respond to it and consider his response. However an issue
arose as to what was the obliged to disclose to the complainant
to obtain his response? That was it sufficient to indicate the
gist of the any material adverse to his case or should he be
shown all the material seen by the board? The Lord Justice
held that the complainant should be shown all the material
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seen by the board, apart from any documents for which public
interest immunity can be properly claimed. The board was not
making an administrative decision requiring it to consult
interested parties and hear their representations. It had the
duty to adjudicate on a specific complaint of breach of a
statutory right. Except where public interest immunity is
established, there is no reason why on such adjudication the
board should consider all material withheld form the
complainant. In this case, the complainant was only shown
part of the materials and court held that this hampered his
response due to lack of full information and thus breached
rules of natural justice.
6. Right to legal representation

Pett Vs Greyhound Racing Association Ltd (1970) I KB 46
In Enderby Town Football Club Ltd Vs The Football Association Ltd
(1970) 3 WLR 1021, Court held that denial of legal representation is not
necessarily breach of natural justice. Lord Denning MR. at 607 stated
thus, ‘Seeing that courts can inquire into the validity of the rule, the
question is; is it lawful for the body to stipulate in its rules that its
domestic tribunal shall not permit legal representation? Such a
stipulation is, I think, clearly valid so long as it is construed as directory
and not imperative: for that leaves it open to the tribunal to permit legal
representation in an exceptional case when the justice of the case so
requires. But I have some doubt whether it is legitimate to make a rule
which is so imperative in its terms as to exclude legal representation
altogether, without giving the tribunal discretion to admit it, even when
the justice of the case so requires.’
Regarding the legal representation the reviewing court will normally

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establish procedure, the practice adopted by the tribunal or authority
whose decision is reviewed. Thus, where it has been allowing legal
representation, it should do so for every body but where it has not been
doing so, the denial won't amount to breach of natural justice.
7. Although not established by any legal authority, it has been

recommended that a right to a fair hearing includes disclosure of the
relevant in formation to the party that would be affected by the decision.
(per Wade; 6th edition; pages 54750).
R Vs Industrial injuries commissioner .Exparte Moore ( 1965) 1 QB 456
In Ridge Vs Baldwin, Lord Reid stated that before attempting to reach

any decision, they should inform the person of the grounds upon which
they propose to act and give him an opportunity of being heard in his own
defense.
In Byrne Vs Kinematograph Reuters Society [1958]1 W.L.R 762,

Harman J stated requirements of natural justice as a person accused
should know the nature of the accusation made and should be given
opportunity to state his case and that the tribunal should act in good
faith.
Suffice to note that there is no strict specific procedure laid down to be

followed under natural justice while carrying out administrative duties
and functions, but the requirements of fairness depend on the facts of
each case. The question that arises is, what then, are the criteria by
which to decide the requirements of fairness in any proceeding?
Authoritative guidance as to this was given by Lord Bridge in Lloyd V
McMahon [1987] AC 625 at 702, where he said, ‘…the rules of natural

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justice are not engraved on tablets of stone. What the requirements of
fairness demand when any body, domestic, administrative or judicial, has
to make a decision which will affect the rights of individuals depends on
the character of the decision making body, the kind of decision it has to
make and the statutory or other framework in which it operates. In
particular, it is well established that when a statute has conferred on any
body the power to make decisions affecting individuals, the courts will not
only require the procedure prescribed by the statute to be followed, but
will readily imply so much and no more to be introduced by way of
additional procedural safeguards as will ensure the attainment of
fairness.’
Circumstances under which the right to a fair hearing may be

excluded
The right to a fair hearing is not absolute in administrative proceedings
and may be excluded in the following cases;
1. Where factors such as agency come into play e.g. agent action may be
needed to safeguard public health/ safety in the case of White Vs
Redfern (1879) 5 QB 15. The right to a fair hearing was excluded where
there was agent need to protect public health and destroy bad food that
was exposed for sale.
2. It may be excluded where considerations of national security must be

taken into account. This should be considered in light of Article 43 of the
Constitution. It provides inter that, in the enjoyment of the rights and
freedoms prescribed in the constitution, ‘no person shall prejudice the
fundamental or other human rights and freedoms of others or the public
interest. It states further that public interest under this article shall not

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permit political persecution; detention without trial and that any
limitation of the enjoyment of the rights and freedoms prescribed by this
Chapter beyond what is acceptable and demonstrably justifiable in a free
and democratic society, or what is provided in this Constitution.
In Council of Civil Service Unions Vs Minister for the Civil Service

(1895) AC 374, the facts of this case were as follows; the Government
communications headquarters(GCHQ), a branch of the civil service
responsible for the security of the UK military and official
communications and the provision of signals intelligence for the
government. Since its formation all the staff had been permitted to belong
to trade unions. There was an established practice of consultation
between the management and the civil service unions at GCHQ. Following
incidents of industrial action at GCHQ the Minister for civil service, the
Prime Minister, issued an oral instruction to the effect that the terms and
conditions of civil servants at the GCHQ should be revised to exclude
membership of any trade union other than a departmental staff
association approved by the Minister. The union applied for judicial
review, seeking a declaration that the Minister had acted unfairly in
removing their fundamental right to belong to a trade union without
consultation. The case was ruled in favour of the applicants and the
Minister appealed to the Court of Appeal which allowed his appeal and
the appellants appealed to the House of Lords.
Having held that the courts have power to review the exercise of a power
delegated to the decisionmaker under the royal prerogative, Lord Fraser
of Tullybelton stated that, the respondent’s case is that she deliberately
made the decision without prior consultation because prior consultation
‘would involve a real risk that it would occasion the very kind of
disruption at GCHQ which was a threat to national security and which it
was intended to avoid.’ That the ‘question is one of evidence. The decision
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on whether the requirements of national security outweigh the duty of
fairness in a particular case is for the Government and not for courts; the
Government alone has access to the necessary information, and in any
event the judicial process is unsuitable for reaching decisions on national
security. But if the decision is successfully challenged, on ground that it
has been reached by a process which is unfair, then the Government is
under an obligation to produce evidence that the decision was in fact
based on national security.’’ The lordship concluded that in this
particular case the respondent had shown that her decision was one
which not only could reasonably have been based, but was in fact based,
on considerations of national security, which outweighed what would
otherwise have been the reasonable expectation on that on the part of the
appellants for prior consultation.’
In R V Secretary of state for the Home Department, exp Hosenball

[1977] 3 ALLER 452, the considerations of national security were held to
limit very substantially the obligations of audi alteram partem. In this
case, Hosenball, a US citizen, challenged a deportation order that had
been made against him by the Home secretary deeming his deportation to
be conducive to the public good as being in the interests of national
security. Hosenball challenged the voluntary procedure as not conforming
to natural justice. In particular Hosenball drew attention to the fact that
he had not been given any detailed information as to the exact allegations
against him, and that the security advisers had information before them
from the intelligence service which they did not make available to him.
Although he had been permitted to make representations, the value of the
opportunity was rather limited because he did not know precisely the
charges against him (something that audi alteram partem would have
required). The Court of Appeal denied that there had been any breach of
natural justice.
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The Court contrasted the normal procedural rights afforded to persons
against whom serious action was to be taken, with the more limited
protection in a case such as this. As Lord Denning MR said in the above
case; ‘…this is no ordinary case. It is a case in which national security is
involved, and our history shows that, when the security of the state is
endangered, our cherished freedoms may have to take second place. Even
natural justice may suffer a setback….spies, subverters and saboteurs
may be mingling among us, putting on most innocent exterior. They may
be endangering the lives of men in our secret service, as Mr. Hosenball is
said to do…If they are foreigners they can be deported.’
3. Where an employer summarily dismisses an employee the right of a

fair hearing is excluded unless contractual or statutory procedural duties
are cast on the employer, the court can only grant an employee damages
for breach of contract if the dismissal is wrongful but can not declare the
decision to dismiss null and void.
Mallock Vs Aberdeen Corporation (1971) 1 WLR 1578

Musisi Vs Greenlays Bank.
NB. Bearing in mind Art 44; it is not consistent with the constitution, this
is done for administrative expediency.
Effects of failure to observe natural justice
The effect is that a decision given in disregard of the principles of natural
justice is void. It may lead to the quashing of the decision and damages
may ensue from such proceedings. In Kaggwa V Minister of Internal
Affairs, HC Miscellaneous application No. 105 of 2002, the Minister’s
decision was quashed because the applicant had not been granted a fair
hearing. In Annebrit Aslund V A.G, HC miscellaneous cause No. 441 of
2004, Katutsi J quashed the URA report because it flouted principles of

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natural justice.
THE RULE AGAINST BIAS

The second part of the principle of natural justice is derived from the
Latin maxim "nemo judex in causa sua" meaning no one can be the
judge in his own cause. This gives rise to a duty to act fairly, to listen to
arguments, and to reach a decision in a manner that is untainted by bias.
There can never be a fair trial where the adjudicator has an interest in a
case or matter. There are 2 aspects to the rule against bias;
1. That the adjudicator must not have any direct financial or proprietary
interest in the outcome of the proceedings.
2. An adjudicator must not be reasonably suspected or show a real
likelihood of bias.
Financial or pecuniary interest

No matter how small the adjudicator's pecuniary interest may be or no
matter how unlikely it is to affect his judgement, he is disqualified from
taking part in making a decision. Any decision made in such
circumstances will be set aside. In Leeson V General Council of Medical
Education (1889) 43 Ch.D 336, court stated thus, ‘…a person who has
judicial duty to perform disqualifies himself from performing it if he has a
pecuniary interest in the decision which he is abut to give or a bias which

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renders him otherwise than an impartial judge. If he has a pecuniary
interest in the success of the accusation he must not be a judge.’
The same principle applies when the pecuniary interest is that of the
adjudicator’s wife or other close relatives. Likewise the adjudicating officer
should disqualify himself from the proceedings if he has any substantial
pecuniary relation with a party, even if that relation is not directly at
issue in the case. Of course this principle cannot be carried to its logical
extreme, otherwise all adjudicators would withdraw from all matters. But
in general an adjudicating officer should be very wary of participating in a
case where his pecuniary relations with a party might appear to affect his
decision.
In Dimes Vs Proprietors of Grand Junction Canal proprietors (1852) 3

HLC 759, a decree made by the Lord Chancellor was set aside because he
was holder of shares in the company which was a party to the
proceedings. The brief facts were as follows. Lord Cottenham was Lord
Chancellor of England and held 92 shares in a company called G,.J.
Canal worth thousands of pounds. There was a dispute between a man
called Davies and the company. The company applied for an injunction
restraining Mr. Davies’ conduct in putting a bar across the canal, which
he claimed to be his property. The application was granted and there was
an appeal to Lord Cottenham as Lord Chancellor, the decision was
affirmed, Mr. Davies losing his appeal. Lord Cottenham had not disclosed
that he was a shareholder of the company. T was held by the House of
Lords that the Lord Chancellor was disqualified from acting as a judge in
the cause on ground of interest and the decree was set aside. L.C.J., Lord
Campell said, ‘‘No one can support that Lord Cottenham could be, in the
remotest degree influenced by the interest that he had in this concern;
but it is of the last importance that the maxim that no man is to be a
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judge in his own cause in which his own cause should be heard is sacred.
And that is not to be confined to a cause in which he is a party, but
applies to a cause in which he or she has an interest. ….We have again
and again set aside proceedings in inferior tribunals because an
individual, who had an interest in a cause, took part in the decision. And
it will have a most salutary influence on these tribunals when it is known
that this high court of last resort, in a case in which the lord chancellor of
England had an interest, considered that this decree was on that account
a decree not according to law, and was set aside. This will be a lesson to
all inferior tribunals to take care not only that in their decrees they are
not influenced by their personal interest but to avoid the appearance of
labouring under such an influence.’’
Non pecuniary interests

In some cases there may exist some kind of relationships between the
adjudicator and one of the parties that might lead to a biased decision.
The test to be applied are ;
1. Is there a real likelihood of bias?
2. Is there a reasonable suspicion of bias?

NB. There is no need to prove actual bias. Examples of cases where a
likelihood of bias led to the decision being set aside are hereunder
discussed. The locus cluscus on the subject of bias is the case of Libyan
Arab (U) Bank & another V Adani Vassilads CACA No. 9 of 1985, Odoki
JA (as he then was quoted article 126 of the Constitution, then 15 (9) )
and stated that the provision lays down the requirements for a fair trial,
that court must be independent and impartial. He held that bias may be
established against a person sitting in a judicial capacity on one of the

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two grounds;
(a) direct pecuniary interest in the subject matter,
(b) bias in favour of one side against the other. That bias means a real
likelihood of an operative prejudice whether conscious or not. That in
considering the possibility of bias it is not the mind of the judge which is
considered but the impression given to reasonable persons. Justice
Odoki, JA (as he then was), stated that, ‘there must be reasonable
evidence to satisfy the court that there was a real likelihood of bias.
Objection cannot be taken at everything that might raise a suspicion in
somebody’s mind or anything which could make fools suspect. There
must be something in the nature of real bias, for instance evidence of
proprietary interest in the subject matter before court or a likelihood of
bias based on close association with one of the parties as was the case in
Tuman V R.’ His lordship held that in this case ‘there is no reasonable
evidence to satisfy me that there was a real likelihood of bias on the part
of the learned trial judge. There was no evidence or even suspicion that he
had a direct pecuniary interest in the subject matter of the suit. There
was no evidence that he was likely to favour the respondent against the
appellant; and even if the trial judge may have been thought to have
formed some opinion before hand on the case, it is not enough to
establish bias. The allegation of bias was a mere conjecture.’ That the
appellants should have raised a preliminary objection the trial and even if
it were overruled, he should as the trial judge remarked in his judgement
have continued with the hearing and made it a ground of appeal. The
appellants abandoned the hearing because they suspected that the trial
judge had prejudged the case against them before hand. That the burden
of proof lies on the party refusing to continue trial to satisfy court of
appeal that he was justified in his apprehension that it would be futile for
him to continue and that had he done so he would not have had a fair
hearing.

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In Brassington V Brassington [194] 3 ALLER 988 at 990, Holroyd

Pearson L.J stated thus, ‘Before considering the effect of the remarks of
which a complaint is made, we must observe that only a very strong case
indeed could justify a refusal by a party to continue to take part in the
trial. If a party though aggrieved, continues to present his evidence and
arguments he can always reserve his complaint and appeal against the
unfair decision when it has been given. And any remarks which show that
the tribunal prejudged the case against him before he had called his
evidence will always in this court add very great weight to the substance
of the appeal and may in themselves constitute a sufficient ground of
appeal. The aggrieved party will then atleast have shown that he has a
genuine case on which he either ought to have or could have succeeded.
In Metropolitan Properties Co. F.G.C Ltd V Lannon (199)1Q.B 41,

Lord Denning stated that, ‘in considering whether their was a real
likelihood of bias, the court does not look at the mind of the justice
himself or at the mind of the chairman of a tribunal or whoever it may be
who sits in a judicial capacity. It does not look to see if there was a real
likelihood that he would or did, in fact favour one side at the expense of
the other. The court looks at the impression which would be given to
other people. Even if he was impartial as could be, nevertheless if right
minded persons would think that in the circumstances there was a real
likelihood of bias on his part, then he should not sit and if he does sit, his
decision cannot stand. Nevertheless there must appear to be a real
likelihood of bias. There must be circumstances from which a reasonable
man would think it likely or probable that the justice or chairman as the
case may be would or did favour one side unfairly. The court will not
inquire whether he did in fact favour one side unfairly. Suffice it that
reasonable people might think he did. The reason is plain enough. Justice
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must be rooted in the confidence and confidence is destroyed when right
minded people go a way thinking the judge was biased.’
In Patel V Joshi [1952]19 EACA 42, Court of Appeal held that a judge
should not descend into the area where his vision may be clouded by dust
of conflict, but an appellate court will refuse a retrial unless it is
convinced that the vision of the judge had become so cloudedexcessive
intervention.
An example of actual bias is to be found in the Uganda Judicial Code of

Conduct (2003), principle 2.4 provides that a judicial officer 2 shall refrain
from participating in any proceedings in which the impartiality of the
judicial officer might be reasonably questioned. It states further that
without limiting the generality of the foregoing a judicial officer shall
disqualify himself from participating in any proceeding where he has
personal knowledge of the disputed facts concerning the proceedings or
where a member of the judicial officer’s family 3 is representing a litigant,
is a party, or has an interest in the out come of the matter in controversy,
in the proceedings. In R V Rand (1966) L.R 1 Q.B. 230, the judge stated
that, ‘wherever there is a real likelihood that a judge would, from kindred
or any other cause, have a bias in favour of one of the parties, it would be
very strong for him to act.’’
In relation to disqualifying oneself as a result of the probable bias, it was
2
Judicial officer is defined by the Constitution in Article 151 to mean (a) a judge or any person
who presides over a court or tribunal howsoever described; (b)the Chief Registrar or a registrar of
a court; (c)such other person holding any office connected with a court as may be prescribed by
law. The Black’s Law Dictionary (6 th edition) describes the term Judicial as belonging to the
office of a judge, as judicial authority, relating to or connected with the administration of justice.
3
Judicial officer’s family is defined by the Judicial Code of Conduct to include the judicial
officer’s spouse, son, daughter, son-in-law, daughter-in-law, parent and any other close relative or
employee who lives in the judicial officer’s household.
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stated in Leeson V General Council of Medical Education, (1889) 43
Ch.D. 366, that ‘…a person who has judicial duty to perform disqualifies
himself from performing it if he or she has a pecuniary interest in the
decision that he or she is an=bout to give or a bias that renders him
otherwise than an impartial judge. If she or he has a pecuniary interest in
the success of the accusation he or she must not be a judge.’
NB. This equally applies where a judicial officer or chairperson of a

tribunal has any pecuniary relation with a party, even if that relation is
not directly at issue in the case.
Note that mere suspicions should not outweigh and influence the justice
of the case, otherwise the essence of the rule against bias will be lost. As
was noted in the Australian case of Re JRL, exparte CJL, (1986) 161
CLR 342 at 352 Mason J, sitting in the High Court of Australia, said,
‘Although it is important that justice must be seen to be done, it is
equally important that judicial officers discharge their duty to sit and do
not, by acceding too readily to suggestions of appearance of bias,
encourage parties to believe that by seeking the disqualification of a
judge, they will have their case tried by someone thought to be more likely
to decide the case in their favour.’ This is fortified by the Clenae case
[1999] VSCA 35 Callaway JA observed thus, ‘As a general rule, it is the
duty of a judicial officer to hear and determine the cases allocated to him
or her head of jurisdiction. Subject to certain limited exceptions, a judge
or magistrate should not accede to an unfounded disqualification
application.’
In addition, principle 5.1 of the Judicial Cod of Conduct provides that a

judicial officer shall not in the performance of judicial duties, by words or
conduct manifest bias or prejudice towards any person or group on the

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basis of unjust discrimination.
The rationale for the apparent strictness of the rule is one of public policy.
In Serjeant V Dale (1877)2Q.BD 558 at 567, court said, ‘‘The law in
laying down this strict rule, has regard, not so much perhaps to the
motives which might be supposed to bias the judge, as to the
susceptibilities of the litigant parties. One important object, at all events
is to clear away everything which might engender suspicion and distrust
of the tribunal, and so to promote the feeling of confidence in the
administration of justice which is so essential to social order and
security.’’ Hence, the dictum of Lord Heward C.J in R V Essex JJ.
Exparte McCarthy (1924) 1 KB 256, ‘Justice should not only be done,
but be manifestly seen to be done.’ In that case, the police charged the
applicant with dangerous driving. As is known, in England, justices of the
peace sit with a qualified clerk. At the hearing, the acting clerk happened
to be a member of the firm of solicitors who were acting for someone who
was claiming damages from the applicant for personal injuries he received
in the collision. The justices retired to consider their decision and the
acting clerk went out of court with them, in case they wanted any
guidance on the law. The applicant was convicted. An affidavit was sworn
that the acting clerk was not in fact consulted. The conviction was
quashed for, it was held to be improper for the clerk to be present with
the justices when they were deliberating on their decision, when his firm’s
interest in the case was borne in mind. It was not necessary to establish
bias in fact and the result would have been the same even if the clerk had
not known that his firm was acting professionally.
The test for actual bias is subjective while the test for perceived bias is
objective. Perceived bias refers to a situation where an impression could

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be created to a reasonable person that the judicial officer is not impartial.
It is not the mind of the judge that is considered but rather the
impression given to reasonable persons. See Tumaini V Republic [1972]
EA44. In Blasio Sengendo & another V Uganda [1994] IV KALRN 133,
Tsekooko J held that inter alia that the inference of bias must be as to
what a reasonable man would think given the set of circumstances. That
if the reasonable man would think that the magistrate did favour one side
unfairly at the expense of another, then bias is proved.
NB. Impartiality is a question of perception and there are three instances

a judicial officer should be alive to;
(i) Perceived conflict of interest. (ii) Behaviour (inside and outside court).
(iii) Associations and activities outside court. Conflict of interest arises
where there is probability of advancing or promoting the personal or
interest of others in a manner which compromises fairness and the entire
judicial process. This has already been discussed in the preceding
paragraphs.
1. Where the adjudicator was a member of an organisation that was a

party to the proceedings.
In Hannam Vs Bradford Corporation 1970) 1 WLR 937, an education
subcommittee had confirmed had confirmed the decision by the governor
f the school to terminate a teacher's employment. Held the decision was
quashed by the court because of the fact that the 3 members of the sub
committee were also governors of the school gave rise to the possibility of
bias.
2. Where extrajudicial pronouncements reveal that an adjudicator was

partisan.

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R Vs Halifax justices exparte Robinson (19120 76 JB 233
Ashumd Vs AG
3. Where there is personal friendship or hostility towards one of the

parties.
In White Vs Kuzych 1951) AC 585, the respondent a member of the
appellant trade union was found guilty on charges alleging breach of Art 2
of Bye laws of the union including committing acts discreditable to it in
publicly opposing established policies of the union by campaigning
against the closed shop principle. He (...............) was provided with an
option of an appeal after exhausting al remedies from the findings in the
report and the resolution of his expulsion that he had not been validly
expelled from the membership. He claimed that the decision was biased
and breached natural justice and even intimidation. Court held that the
conclusion reached was a decision even if it was tainted with / by bias or
prejudice or arrived at in defiance of natural justice and even if the voting
of some members might have been reached/ affected by intimidation.
In R V Bow Street Metropolitan Stipendiary Magistrate, ex parte

Pinochet Ugarte [2000] 1 AC 119, Lord BrowneWilkinson stated thus,
‘‘…the fundamental principle is that a man may not be a judge in his own
cause. This principle as developed by courts has two very similar but not
identical implications. First it may be applied literally; if a judge is in fact
a party to the litigation or has financial or proprietary interest in its
outcome then he is indeed sitting as a judge in his own cause. In that
case, the mere fact that he is a party to the action or has a financial or
proprietary interest in its outcome is sufficient to cause his automatic
disqualification. The second application of the principle is where a judge
is not a party to the suit and does not have a financial interest in its

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outcome, but in some other way his conduct or behaviour may give rise to
a suspicion that he is not impartial, for example because of his friendship
with a party….’’
According to De Smith, Woolf and Jowell, Judicial Review of

Administrative Action, 5th edition (1995) at p.525, once it is shown
that the judge is himself a party to the cause, or has relevant interest in
its subject matter, he is disqualified without any investigation into
whether there was a likelihood or suspicion of bias. The mere fact of his
interest is sufficient to disqualify him unless he has made sufficient
disclosure.
4. Where a person is likely to be a witness in the proceedings, he can not

be a judge.
Ndegwa Vs Nairobi liquor licensing court.
NB. The test of likelihood or reasonable suspicion of bias must be applied

realistically.
In Sikabuza Vs The Director of Survey, the applicant's licence had been
cancelled by the survey licence board on grounds of professional
misconduct, he appealed on the basis that the composition of the board
did not meet the standards of natural justice. The composition of whom
were surveyors and 3 other members, 2 of whom were surveyors. The
applicant contended that the 2 surveyors on the board were his
competitors in the business and were therefore sitting in judgement of
their own cause. Court held that the mere fact that an interested party
sits on the disciplinary body, which applies professional standards does
not necessarily conflict with the maxim that no man be judged in his own
cause.

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Similar reasoning was applied in the case. Res a barrister (1981) QB

683, where court held that a solicitor could adjudicate in a matter
brought by the council of the law society.
The need to apply the test realistically also means that political affiliations
of the adjudicators are usually not taken into account.
Where it is found that there is a real likelihood or a reasonable suspicion

of bias, the adjudicator is disqualified from presiding over the matter. The
rational for such disqualification is based on the principle that public
confidence in the administration of justice must not be impropriety. The
rule looks to the appearance of the matter to an outsider.
According to the case of R Vs Sussex Justices Exparte McCarthy (1924)

1 KB 256, the issue of appearance of the matter to an outsider is not that
would a member of the public looking on the situation as a whole
reasonably suspect that a member of the adjudicating body would be
biased. The court must ask itself whether a reasonable person viewing the
facts would think that there is a substantial possibility of bias therefore
the question is not whether the judge is likely to be biased but whether he
is likely to be seen as biased.
Consider this hypothetical case and answer the question: The adjudicator
applies for a job with an organisation one of whose members is going to
be called as an expert witness by one of the parties to the proceedings.
Would the adjudicator be disqualified for bias?
The answer is to be found in Re medicaments and related classes of
goods (2001) 1 WLR 700, this was a matter relating to the prices of

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certain medicines before the restrictive practices court of England. An
administrative tribunal with the membership consisting of a high court
judge and lay people who were also experts in accountancy and
economics was constituted. During the hearing one of the members of the
tribunal, a doctor(R) approached an economic consultancy firm to ask if
they would consider employing her. She later realised that one of the
directors of the firm a Mr. B was an expert witness on behalf of the
applicant in the case. She said she had forgotten this at the time of
making the application; she consulted the presiding judge and other
members of the tribunal and sent a statement to both parties advising
them of the situation. In the statement, she said that because of her
involvement in the case as a member of the tribunal and Mr. B's
involvement as an expert witness her application for the vacancy could
not be pursued until the conclusion of the case. Never the less, the
respondent appealed on grounds that there was a reasonable suspicion of
bias. The H.O.L held that in applying the test for bias, it would in deed
appear to an ordinary person that there was a likelihood of bias and that
on those grounds doctor R should have disqualified herself from presiding
over the matter.
Lord Phillips, MR. in the above case stated that the test is the reasonable
apprehension test and noted that it is by far the most appropriate test for
protecting the appearance of impartiality. Lord Phillips distinguished the
test of real likelihood and reasonable apprehension/suspicion and
preferred the latter. He stated that, ‘…the premise on which the decisions
in this court are based is that public confidence in the administration of
justice is more likely to be maintained if the court adopts a test that
reflects a reaction of the ordinary reasonable member of the public to the
irregularity in question. References to the reasonable apprehension of the
lay observer, the fair minded observer, the fairminded, informed lay

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observer, fairminded people, the reasonable or fairminded observer, the
parties or pubic, and the reasonable person abound in the decisions of
the court. They indicate that it is the court’s view of the public view, not
the court’s own view, which is determinative. If public confidence in the
administration of justice is to be maintained, the approach that is taken
by a fairminded and informed members of the public cannot be ignored.
His lordship concluded that ‘…the court must first ascertain all the
circumstances which have a bearing on the suggestion that the judge was
biased. It must then ask whether those circumstances would lead a fair
minded and informed observer to conclude that there was a real
possibility, or real danger, the two being the same, that the tribunal was
biased. The material circumstances will include the explanation given by
the judge under review as to his knowledge or appreciation of those
circumstances. Where that explanation is accepted by the applicant for
review it can be treated as accurate. Where it is not accepted, it becomes
one further matter to be considered from the viewpoint of the fairminded
observer. The court does not have to rule whether the explanation should
be accepted or rejected. Rather it has to decide whether or not the fair
minded observer would consider that there was a real danger of bias
notwithstanding the explanation advanced.’
NB. Sometimes it is proposed that the question upon which the court
must reach its own factual conclusion is this, is there a real danger of
injustice having occurred as a result of bias? By ‘real’ is meant not
without substance. A real danger clearly involves more than a minimal
risk, less than a probability. It is submitted that injustice will occur as a
result of bias if the decisionmaker unfairly regarded with disfavour the
case of a party to the issue under consideration by him. I would take
‘unfairly regarded with disfavour’ here to mean ‘was predisposed or

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prejudiced against one party’s case for reasons unconnected with the
merits of the issue.’ It should be noted that this kind of approach was
criticised in the Re Medicaments case above. Court noted therein that it
is the hypothetical rather than the actual test of the likelihood of bias to
be applied.
TOPIC
REMEDIES IN ADMINISTRATIVE LAW4
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
4
Researched & compiled by Nambale John, LLB (Hons) MUK, Dip L.P, (LDC) This
compilation is made for personal academic reference purposes.

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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 because originally under England law they were available only
to the crown and not to the subject. The crown used them to ensure that
public authority 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 England 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

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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, quasijudicial, 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 the
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 ultravires 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

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the process by which King’s 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 (King’s 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 King’s Court (this is the same as
Uganda’s High Court empowered to grant remedies of certiorari and
prohibition.’’ It should be noted that the 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 as
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

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absolute. It provides that in the determination of civil rights and any
obligation, or in criminal matter a person shall be given a fair, 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, ‘…if one accepts that
‘natural justice’ is a flexible term which imposes Megarry VC in McInnes
V Onslow Fane different requirements in different cases, it is capable of
applying to the whole range of situations indicated by the terms such as
‘judicial’, ‘quasijudicial’ 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 hears 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.

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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 Basharaki 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

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flouted principles of natural justice. In 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 removing the
report into the High court 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. 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

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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 Uganda’s 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 Minister’s 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

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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. 5In Rethe 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 rehearing 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 of excess of jurisdiction were 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 ultravires 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 with in 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
5
Wade, Administrative Law 1965, p 97-98 and S A. De Smith, Judicial Review of Administrative Action (3 rd
edition), p 428-432

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Is a similar remedy to 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 is exceeding it's jurisdiction by entertaining matters which
would result in it's 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.6 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
6
Ibid Chapter 9

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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 judicialtype 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
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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.25.
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 Herndon Exparte Chorley (1932) 2 KB 696

R Vs Thens Magistrates Court Exparte 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 subcounty 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

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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 bypass 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) 2QB538
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 a head 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 handinglove. 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.

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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 Oswldwistle (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
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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 byelaws 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.

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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 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. Ultravires.
2. Challenge on jurisdictional grounds i.e certain defined circumstances.
3. Failure through justifiable statutory power that agency on which the
power has been confined has failed properly to retain and exercise a free
and un fettered power of judgement e.g a decision maker may operate a
self imposed policy unduly strictly 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.

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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 Deng MR, " the ............. of prohibition
and certiorari ......... 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 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
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1. Injuctions
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 ultravires. In

AG V s Fulham Corporation (1921) 1 Ch 440, the defendant had
statutory power to provide wash 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 were 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
ultravires. The AG sought for and successfully obtained an injunction to
restrain the corporation from acting ultravires.
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 (19530 Ch 149, an injunction was granted to prevent a public
authority from committing a nuisance i.e polluting a river.

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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 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

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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
administration 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 Deming In Barnard Vs National Dock Labour

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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 ultravires. In Ridge Vs Baldwin,
where 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 ultravires 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 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

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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 it's 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 discretion any 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

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his / her dismissal is a nullity because in that case the employment
would still continue.
The rational 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.
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 of the body in question.

In Shah Vs Barnet London Borough Council, the council refused to
grant Shah a grant to attend to 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

SERIES
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 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
NONJUDICIAL REMEDIES
These are remedies which are not obtained from court.

SERIES
I.G.G
Commissions of inquiry
Uganda Human Rights Commission
Relevanrt law;
Commission of inquiry
Administrative bodies which are adopted or constituted to investigate any
matter of public concern.
S.1 of commission if inquiry acts.
Art 99 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 forcecertain heads e.g Bakiza etc.
Justice Julia Sebutinde.
Exploitation of Congo resources led by Justice Porter
Recent comption in URA Sebutinde
Whio heads it;
it's headed by a judge of supreme court and assisted by some who may
not be senoir lawyers.
technicalities may require renown 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 CIA 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 writting S.9
commissioners are given powers of high court
can change contempt of court.
S.12 appear with an advocate.

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Act impartially and fairlyobserve rules of National justice.
Aslund V s A.G S.6 CIA S.4
make recommendations / report and signed by commissioners
Justice Katsusi in Aslund Vs A.G to the authority and not allowed to
implement
free to adopt their own rules of procedure to guide them in conduct of
their work.
Importance;
1. They allow some things which could not be handled by court because
of it's informality' political nature etc.
2. Held in public and open to every body.
3. can lead to other remedies to be granted.
Failures.
In effective 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 and under funding
temporarily therefore continuous existence of the problem therefore
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 fir the sole purpose of attaining the objectives of the

SERIES
relevant legislation. All public officers derive their authority from
legislation enactments. Their duty is therefore to give effect to the
provisions o9f those enactments.
This is done through exercising powers which they have i.e they must
act intravires they are also expected to follow established procedures and
these are necessary because of the requirements of transparency,
constituency, uniformity and fairness.
P.A are also expected to put in effect of N.J whenever they are called
upon to adjudicate over rights of persons.
P.A are also expected to exhibit a high degree of honesty, uprightness

and to avoid al 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
or decision P.O 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, taxtax 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 services commission.

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Art.42 provides that all persons who appear before P.O 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 provided 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 n 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 they are 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.

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1. Where power is exercised by the wrong authority/ ultavires 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 justice intervention in administration

process have been formulated as including the following;
1. Illegalityultravires
2. Irrationality abuse of discretionary powers
3. Procedural impropriety failure to follow procedures.
NB. These remedies are only available after exhausting the local remedies
as provided under S.38 JA.
Council for civil unions Vs The 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

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those grounds of illegality, irrationality and procedural impropriety. In
Karinari Corner Bar and Restaurant V Liquor Licensing Board (1967)
EA 426, the grounds for appeal which were stated in the statute were
restricted to refusal, renew, or transfer a licence. In the instant case, the
appeal was based on refusal top grant a 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 J.R 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 tribunal. Tax appeals tribunal,
from decisions of URA, public officials like a Minister e.g older statutes
used to give Ministers appellate powers in licensing, high court, or a lower
court. e.g electoral matters relating to nomination of candidates may be
subject to appeals to the High Court.

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7. On the other hand, Judicial Review is only available in the High Court
in accordance with provisions of Judicature Act and the Amendment
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 public authority exercises).

In R Vs Disciplinary Committee of Jockey Club Exparte Aghakhan
(1993) 1 WLR 909. This issue was whether the decision by the club's
disciplinary committee of disqualifying (race winners) owners 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
dismissing the appeal that although the hockey club exercised
administration control over racing activities in Great Britain , its powers
and duties will 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 them selves for administration agencies i.e. courts
should not be normally concerned with merits of administration decision.
However, common law recognises that courts have a role were rights of
persons are interfered with by administrative officials.

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Under common law, courts have removed the grounds for judicial review
and it is only available in the following circumstances;
1. Procedural impropriety
2. Abuse of discretionary powers
3. Acting ultravires (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 administration 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"
DOCTRINE OF ULTRAVIRES
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 he 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. he had ignored the established procedures.
Substantive Ultravires
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. ultravires will arise on grounds of jurisdiction. In
Re: Abdalla Salim Ali (1967), the principal immigration officer wanted to
SERIES
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
ultravires his powers by deporting a Tanzanian citizen which were not
provided for by the statute.
Ultravires may also arise were conditions precedent to exercise 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 precondition meant
the resultant act was ultravires.
Ultravires 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 nonmembers 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, nonmembers were allowed to give their views by show
of hands. Court held that the decision of the liquor licensing court was
ultravires because it was improperly constituted in terms of membership

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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 ultravires 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.
Ultravires 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
SERIES
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 valid determination. 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 ultravires in so far as it purported to give
the director of agriculture legislative powers.
In Jan Mohammed Vs R, Had similar factsgovernor had powers under

native produce import powers to make rules regarding how native
produce. The governor directed his power to director of agriculture to
specify the areas of operation of rules. The appellant challenged the
validity made by the director of agriculture. Court held that they were
ultravires because the delegation of making rules was unlawful.
Procedural ultravires
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.

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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 consulted include interest
groups, professional body which is 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

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means that the P.A has acted ultravires 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 sections1316. 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

SERIES
(proposals and byelaws). 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
ultravires 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

SERIES
the procedures envisaged under the ordinance. Court held; that
regulations were invalid and ultravires 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 is subject of denial of principles of natural justice. It is not
necessarily ultravires. Ultravires 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?
ABUSE OF DISCRETIONARY POWERS

SERIES
Discretionary Powers (herein abbreviated as DP) are granted for purpose
of attainment of specific objectives in particular legislation. D.P must be
exercised judicially i.e. in
a) Accordance with the law.
b) Basing the decision on facts or available evidence.
c) Taking into account principles of natural justice.
The general principle is that there is no absolute discretion. The law does
not expect public officials to do whatever they like from the powers
granted to them. Reasons for discretion could be different circumstances
that need to be taken into account before reaching a certain decision.
Discretion may however be used as a flexible tool of managing public

affairs; Public officers to make flexible decisions based on circumstances.
Like all powers, discretionary powers may be abused and administrative
law intervenes where P.A abuse their powers of discretion.
How can discretionary powers be abused?

1. Where power is used for improper purposes.
2. Where discretion is based on irrelevant consideration.
3. Unreasonableness.
4. Where P.A does a wrong thing.
5. Where discretion is fettered/ restricted.
6. Acting without evidence while making decisions.
a) Improper purposes.
P.A is expected to use D.P to achieve objectives which are stated /
anticipated under a particular legislation. I.e consequential.
In Padfield Vs Minister of Agriculture, it was stated as a principle that a

public authority uses statutory powers to achieve the stated objectives.

SERIES
Where a P.A acts otherwise, it will be deemed to have abused its
discretion even if the result is beneficial to the relevant community.
In Sydney Municipal Council Vs Campbell, a P.A had statutory powers

which he could exercise with it's absolute discretion and this statutory
power was given to the P.A to acquire land for the purpose of modelling
the city. Mr. Campbell's land was acquired using this D.P in acquiring the
land; the stated objective was that the land would be disposed of at a
future date and at a higher price. The acquisition of land in this case for
purposes of speculation was Held to be a situation where P.A had used its
statutory powers for an improper purpose. Court went ahead and issued
an injunction to the council restraining it to acquire the land.
In Wheeler Vs Leicester C.C (1985) AC 554 / (1988) 2 ALLER, the

appellant sought judicial review to compel the city council to quash a
resolution of the council which had prevented the appellant from using
one of the council recreational grounds. The council had statutory powers
to allow or withhold permission for use of its grounds. The stated reason
for refusal was that members of the Right Wing club had toured South
Africa during the time of apartheid. The resolution of the council had
been motivated by the desire to harmonise race relations within the city.
Court agreed with the appellant and Held that it was an abuse of
discretionary powers to deny the appellant recreational facilities because
of the desire to harmonise race relations within the city. That this was an
example were D.P were used to achieve something beyond the scope of
the statute.
In Robert Vs Hopwood, powers were given to the local authority to fix the
level of wages that would be paid to the employees of the local authority.
The local authority went ahead and fixed equal wages for both males and

SERIES
females. Prior to that, women were earning less. Court held that court
refused to confirm that this D.P had been properly exercised. That their
discretion had been based on Eurocentric principles of socialist
philanthropy or feminist ambition to secure equality of sexes in wages in
the world of labour.
NB. Power should be used to link the works to establish objectives.
b) Irrelevant considerations.
The exercise for discretion calls for taking into account relevant facts.
Relevant facts may be expressly stated or implied depending on the
circumstances.
In Associated provincial picture houses Vs Wednesbury Corporation, the
Judge stated " that the exercise of discretion must be a real if in the
statute conferring discretion there is to be found expressly or by
implication matters of the authority ought to have regard to and then in
exercising these discretion, he must have regard to those matters…" that
the authority must disregard irrelevant collateral matters." In this
particular case a licensing authority had powers to licence cinema halls
and to impose such conditions as it deemed fit. The conditions was that
no children under 15 years shall be admitted to any entertainment
whether accompanied by an adult or not and one of the issues was
whether age was relevant in licensing those particular activities. Court
held that this was a reasonable and relevant fact which was motivated by
desire to protect the welfare of children.
There are cases where courts have interfered with administrative

decisions on grounds of irrelevant considerations. In Re; Gymkhana
Club, the club applied for a renewal of its licence which it had held for
over 34 years. The licencing authority refused to renew the licence on

SERIES
grounds that the ground was still largely discriminatory in it's
membership and the licencing authority based it's accusations of
discrimination on internal rules of the club which required that a person
can only become a member if she/ he is supported by an existing
member that due to such exclusive membership. The club challenged the
decision of licencing authority on grounds that it is internal rules were
irrelevant in the issue of application before the licencing authority. Court
held that the decision had been based on admission rules which were not
relevant to the exercise of discretion.
In Fernandes Vs Kericho Licencing Court, the licence was denied to

Fernandes on grounds that he was not a Kenyan citizen. There were no
statutory requirements for this citizenship to acquire a licence. Court held
that the licencing authority had abused it's D.P by using irrelevant
considerations. Equally, in Shah Vs Transport Licencing Board, a
Licence was denied to Shah (applicant) on because it was aimed at
removing imbalances between Kenyans and non citizens. Court held that
this was abuse of discretionary powers using irrelevant reasons.
In Mandhwa Vs City Council of Nairobi, allocation of stalls was denied
because of the desire to allocate stalls to Kenyans of African origin. Court
held that issue of race and citizenship were irrelevant and should not
have taken into account.
Other irrelevant considerations include;

place of origin
nationality in sense of tribe
race
gender consideration unless for purpose of affirmative action
colour
religion.

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c) Unreasonableness.
Discretionary powers are expected to be exercised within the grounds of
reason. What is reasonable depends on circumstances of each case. P.A is
expected to act reasonably so as to achieve the objectives of a particular
statute. Examples where judicial discretion has been challenged for
having acted unreasonably include the following; In Associated
Provincial Picture Houses Vs Wednasbury Corporation court held that
P.A must act reasonably and must take into account relevant
considerations.
In Robert Vs Hopwood
, Court held that it was unreasonable for P.A to use its discretionary
powers regarding wages and put in place provisions that require payment
of equal wages to men and women. Similarly in Prescole Vs Birmingham
Corporation, A local authority was held to been unreasonable were he
used his powers to set fares which were payable to local transport system
by allowing free travel for senior citizens.
In Re; Bukoba Gyamukhana Club, Court held that a licencing authority

had acted unreasonably where he refused a licence by considering
irrelevant factors. The question of reasonableness depends on what is
acceptable in that particular society or establishment.
Procedural defects (additional authorities)

SERIES
1) Consultation.
It involves some indication of what the obligation involves. In Rollo Vs
Minister of Town and county planning (1948) 1 ALLER 13, a Minister
was obliged under the Town & County Planning Act to consult with " any
local authorities which appear to him to be concerned " before making an
order designating an area as the site of a new town, Bucknill, L.J said "
on the one side the minister must supply sufficient information to the
local authority to enable them to tender advise and on the other hand, a
sufficient opportunity must be given to the local authority to tender that
advise" therefore the essence of consultation is to tender genuine
invitation extended with acceptable mind to give advise.
In R Vs Secretary of state for social services Exparte Association of
Metropolitan Authorities (1986) 1 ALLER 164, Webster J explained "...
it must go without saying that to achieve consultation, sufficient
information must be supplied by the consulting to the consulted party to
enable it to tender helpful advise. Sufficient time must be given... to
enable it to do so and for such advice to be considered..."
Consequence of failure to consult
At all / properly courts will hold that there has been breach of a
mandatory procedural requirement of the enabling act rendering the
subordinate legislation invalid and of no effect.
In Kruse Vs Johnson, Lord Russel C.J said ;" unreasonableness in what

sense? if for instance they (bye laws) were found to be partial and unequal
in their operation as between different classes. if they were manifestly
unjust; if they disclosed bad faith; if they involved such oppressive or
gratuitous interference with the rights of those subject to them as could
find no justification in minds of reasonable men, court might well say "
parliament never intended to give authority to make such rules; they are

SERIES
reasonable and ultravires therefore l conceive unreasonableness only in
this sense.
Appeals
Error of law may be seen;
1. by referring to express misstatement of law contained in the reasons
given for a decision.
2. Showing that no tribunal property directed as to the law could have
reached a particular conclusion it had reached, given the facts it had
found. In Global plant Ltd Vs Secretary of state for health and social
security (1972) 1 QB 139, court considered the scope of appeal on a
point of law when it was alleged that the minister had wrongfully taken
the view that 2 drivers were employed rather than independent
contractors so requiring the employing company to pay the national
insurance contributions. The company was unable to establish such
error and so failed to show error of law in it's appeal.
c) Divesture of discretionary powers/ rules against divesture.

(Fettering/ restriction of divestiture of discretionary powers (Rule
against divestiture of discretionary powers)
A public authority is given discretionary power on the understanding that
the power will be exercised by that particular authority. As a result, the
general rule is that a delegate cannot delegate. In South Port
Corporation V Birkdale District Electricity S.S, Court stated that, “It is
a well established principle that a person or public authority entrusted by
the legislature with certain powers can not divest themselves of the
powers. They cannot enter into any contracts or take any action
incompatible with the due exercise of their powers.”
Public authorities can divest their powers through a number of ways;

SERIES
Question; How can a public authority divest it's powers?

by way of contract
by way of acting under dictation
by way of transfer of discretionary power
Contract
A P.A enters a contract with a person not to exercise the discretionary
power. The general rule is that a P.A can not bind itself not to exercise
discretionary powers. It can not enter a contract which limits it to
exercise its discretionary power. In S.S. Amphite Vs The King, Court
held that an executive authority can not enter into a contract that limits
it's freedom to exercise executive powers and by nature executive powers
are discretionary. The brief facts of this case are that, an agreement for a
contract was entered into between the British representative and owners
of shipping amphite. The substance of the agreement was that the ship
would be allowed to sail and dock into any English port and also that it
would be allowed to carry away goods from an English port. This was a
time of war and because of the war situation, the British government
declined to put in place this contract. The ship owners sued for breach of
contract. Court held that the contract was unenforceable in so far as it
bound the British government not to exercise its discretionary powers.
Similarly in Stringer Vs Minister of local government; a contract that

purported to take away D.P was held to be illegal and unenforceable. In
this case, a local authority had entered an agreement with Manchester
University where by it was agreed that the local authority would not allow
any development within the neighbourhood of the university's radio
telescope. The complainants were denied a planning permission because

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of the agreement. Court held that the local authority had abused its D.P
by signing an agreement which restricts its freedom of operation.
Adherence to policy
The local authority may also be deemed to be fettering its discretionary
powers where it strictly adheres to policy. Policy may be self imposed; the
public authority puts in place policies which restricts its powers. An
example of self imposing policy is found in the case of Singh V Municipal
Council of Nairobi, where a local authority refused to exercise discretion
regarding licensing. It refused to reconsider an application for a license on
its merits. The reason was that the Municipality had passed a resolution
that there would be no issue of that type of license for that type of
business. Court held that that was limiting exercise of discretionary
policy.
Likewise, in Municipal Council of Brocken Hill V Patel, the local

authority refused to give Patel a license for running a bar. The reason
given was that there were many bars in that area and that the council
had decided not to license any more bar operators. This was held to be a
self imposed policy.
Dictation
P.A with discretionary powers is expected to apply its own judgement in
matters relating to discretion. It is not supposed to be directed as to how
the power should be exercised. It does not matter whether the direction
comes from superior officers. Public officers/ authorities who follow the
law is protected under act.173 of constitution.
In Simms Motor Units Vs Minister of labour and national service,
emergency regulations provided that employees who had been dismissed

SERIES
for serious misconduct could complain to an officer within ministry of
labour and there was also provision for appeal to labour against the
officer's decision. The minister of labour directed the board on how it
should handle certain cases. The minister specifically directed that
whenever the board was unanimous and the complaint required re
instatement in service the board will always order for reinstatement. The
employers had challenged such a directive and court agreed. Court held
that the minister's directives made it impossible for the relevant officers to
exercise their own dictation.
In Dent Vs Kiambu Liquor Licencing Board, the licencing board refused

to renew Dent’s licence and licencing court based its decision on the
views of the local residents who argued that Dent should not be given a
licence because he was not easy to the locals even voted against the
granting of the licence. Dent challenged their refusal on grounds that it
had been arrived at through the process of dictation. Court held that the
P.A had not exercised its D.P by itself but had been overwhelmed by views
of the person's to reach that decision.
Dictation may also arise where there is over reliance on established

policies which may be departmental or national. A policy which is not a
law can not affect the exercise the statutory discretionary powers, unless
the policy is translated into law to become effective through parliament.
The general principle is that policies can not be used to undermine the
exercise of discretionary powers.
In Shah Vs Munipal Council of Nairobi, a licencing authority refused to

give Shah a licence because of its own policy of not licencing that type of
business any more. Held; that the licencing authority had been restricted
by it's own policies and had not exercised it's discretion given the law.

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P.A may also be challenged where he followed national policies in a

manner which defeats its own discretion. In Mandwa Vs City Council of
Nairobi, A trading stall was denied to the applicant because of the
government policy of Africanisation of commerce. Similarly in Fernandes
Vs Kericho Licencing Court, a licence was refused on grounds that the
applicant was not a Kenyan citizen. The applicant challenged the refusal
to issue the licence because the L.A had acted under policy and not
exercised discretion.
Policy may however, be taken into account during the process of

exercising discretion. It's not what the law prohibits is rigid adherence to
established policies. In some cases, consideration of policies has been
upheld as relevant. In Kenya aluminium works Vs Minister of
agriculture; court accepted that in some cases, policy may influence
exercise of discretion.
d) Acting without evidence.

Public authorities are expected to exercise discretionary powers
judicially, meaning they must take into account relevant facts / evidence.
Relevant facts are normally obtained by way of evidence. Evidence is by
way of testimony or submission before the relevant authority.
Discretion is not absolute and evidence available may indicate whether

discretion was judicious or not. In Peera Vs Dellasanta, the rent tribunal
fixed a rent payable under it's powers given under statute. The rent
tribunal however did not indicate the basis of arriving at the rent which
they fixed. The High court overturned the decision on grounds that it was
arrived at without any evidence on record.

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Similarly in Dent Vs Kiambu Liquor licencing court, one of the issues was
whether the licencing authority had acted without evidence. Court
established as a matter of fact that the facts that were relied upon to deny
the applicant a licence were not adduced as evidence and not proved to
exist before the licencing authority and held that licencing authority was
wrong to rely on such allegations.
In Munene Vs R, the applicant was a medical doctor who had been

charged of infamous and disgraceful conduct before medical board. The
board ordered the applicant's name to be struck off the medical register
for 2 years and applicant appealed to high court on grounds that the
decision had been based on wrong facts / allegations. The applicant was
especially against the severity of the sentence. The board had arrived at
the sentence on the basis that several doctors had been charged of the
same offence. There was however no evidence to support that fact as a
matter of fact only one doctor had been charged for a similar offence. The
High court reduced the severity of the sentence because it had been
arrived at without evidence.
e) Failure to give reasons.

As a general rule, P.A has no duty to give reasons for every particular
decision it makes. The duty may however arise, where a statute expressly
or by implication requires reasons to be stated. In such cases, P.A will be
under a duty to give reasons for a particular decision.
Judicial authorities also suggest that mandamus may lie where a P.A fails
to state reasons where there is a duty to state reason. In cases where P.A
has to choose from various options, it is normal to state the reasons why
a particular option was chosen.

SERIES
Read the case of Brayhead VS Birkshire Town Council (1964) 2QB 467
f) Error on record
Where there is a mistake in the proceedings either by way of record or
otherwise, the error may be in recording evidence, assumptions of
jurisdiction. An error which influences the outcome of as particular
decision may result into judicial review. Many procedures in civil law and
administration normally give room for correction of mistakes.
TOPIC
PROCEEDINGS AGAINST GOVERNMENT
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

SERIES
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.7
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.’8 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
7
Griffith & Street, Principles of Administrative Law (1963) p 256
8
Brown & Garner, French Administrative Law (1967), p 99-100

SERIES
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 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 employee.
Contract
Under common law, liability under contract could only be enforced by
way of a royal fiat. 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
of GPA provides that government may be sued in contracts as if it was 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
SERIES
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
Majesty’s 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.
Characteristics of government contracts

SERIES
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 biding process.
3. Entered on standard terms and conditions of contract, government sets
terms and conditions and the other party usually accept in a stronger
position in bargaining position and set terms.
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.

SERIES
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 shall, in the
case of proceedings against the Government under this section in respect
of a 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

SERIES
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
Occupier’s 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 then state commits a tort in the course of his employment, the servant
and the state are jointly and severally liable. See 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 refile
having found the riot going on, one of the police fired just like others. For

SERIES
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 master’s 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) Reasonable 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

SERIES
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 ) e.g.
nuisance.
Exceptions to liability
Liability of government may in some cases 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 can not
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

SERIES
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 It
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 of the notice has been served to appropriate
officer (Attorney General) or the head of scheduled corporation or CAO in
Local Government. The requirement of notice are based on the idea that
on receipt of notice, government will make a decision as to it's 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

SERIES
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 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 for a suit 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 l aw 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

SERIES
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.

can not attach government property. Section 19 (4) of the GPA Cap77. 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 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 faction of orders against government
where a person has been g\ranted, he can on application in that behalf
made at any time after the exemption of 21 days from date of the order or
in case the order of costs to be paid.
d) An exparte judge can not be made in default of appearance of

government under the Government Proceedings (civil procedure) Rules.
e) State privilege in the law of evidence S.121 EA and 132.

SERIES
They give the state privilege in the law of the evidence, that public officer
can not be compelled to give evidence relating to confidential government
public communication.
See article 41 of the Constitution. See, Tinyefunza Vs AG
Is it a justifiable protection of the state? EA are they in line with art 41

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BAZIRA ANTHONY.L.L.B.2.UGANDA CHRISTIAN UNIVERSITY.

It is therefore important that in running public affairs efficiently, public

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Definition and principles

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It should be noted that the principle of natural justice has been

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Art. 42 of the 1995 Constitution provides that any person appearing

As a result, judicial review may be instituted on grounds of denial of

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Certiorari issues to quash the decision of the authority. Mandamus issues

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NB. Importance of the above case

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Contents of a right to a fair hearing

2. The parties must be given the opportunity to adequately present their

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3. The administrative authority has a duty to afford an oral hearing but in

R Vs Local government Board Exparte Arlidge (1914) I KB 160

4. It also includes allowing all witnesses to be called to their respective

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In Dent V Kiambu Liquor licensing Court [1968] EA 80, while noting

In R V Board of Visitors of Hull Prison, exparte St Germain [1979] 1

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In R V Army Board of the Defence Council, exparte Anderson [1991]

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6. Right to legal representation

Regarding the legal representation the reviewing court will normally

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7. Although not established by any legal authority, it has been

In Ridge Vs Baldwin, Lord Reid stated that before attempting to reach

In Byrne Vs Kinematograph Reuters Society [1958]1 W.L.R 762,

Suffice to note that there is no strict specific procedure laid down to be

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Circumstances under which the right to a fair hearing may be

2. It may be excluded where considerations of national security must be

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In Council of Civil Service Unions Vs Minister for the Civil Service

In R V Secretary of state for the Home Department, exp Hosenball

3. Where an employer summarily dismisses an employee the right of a

Mallock Vs Aberdeen Corporation (1971) 1 WLR 1578

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THE RULE AGAINST BIAS

Financial or pecuniary interest

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In Dimes Vs Proprietors of Grand Junction Canal proprietors (1852) 3

Non pecuniary interests

1. Is there a real likelihood of bias?

2. Is there a reasonable suspicion of bias?

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In Brassington V Brassington [194] 3 ALLER 988 at 990, Holroyd

In Metropolitan Properties Co. F.G.C Ltd V Lannon (199)1Q.B 41,

An example of actual bias is to be found in the Uganda Judicial Code of

In relation to disqualifying oneself as a result of the probable bias, it was

NB. This equally applies where a judicial officer or chairperson of a

2. Where extrajudicial pronouncements reveal that an adjudicator was

Similar reasoning was applied in the case. Res a barrister (1981) QB