REVISED Remedies in Administrative Law.
REVISED Remedies in Administrative Law.
Introduction
Remedies are measures that can be put in place to correct an infringement of the
law. Remedies are intended to:
i) Compensate the aggrieved party;
ii) Enforce observance of the law;
iii) Prevent continued non-observance of the law; and
iv) To punish the law breakers.
Remedies in Administrative Law are born out of article 42 of the constitution. This
article provides that any person appearing before any administrative official or
body has a right to be treated justly and fairly, and shall have a right to apply to a
court of law in respect of any administrative decision taken against him or her.
Administrative law remedies are broadly categorized into two;
1. Judicial – obtained from courts of law either through a process of:
Appeals
Judicial Review
or legal suits.
Objectives
By the end of this session, you should be able to:
- Know the various public law, equitable and non-judicial remedies.
- Advise on the most appropriate remedy with given facts.
b) PREROGATIVE ORDERS:
History :
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
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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.
Nature of the Prerogative Orders/Remedies
There are 3 examples of prerogative orders i.e. certiorari, prohibition
and mandamus. These are all under judicial review.
They are discretionary remedies and may be granted or refused at
courts discretion.
Purpose of the Remedy : In Chief Constable of the North Wales Police
V Evans [1982] 1 WLR 1155 HL, Lord Hailsham stated that the
remedy of judicial review is intended to protect the individual against
the abuse of power by a wide range of authorities, judicial, quasi-
judicial, and administrative powers. That it is not intended to take away
from those authorities the powers properly vested in them by law and to
substitute the courts as the bodies making the decisions. It is intended
to see that the relevant authorities use their powers in a proper manner.
That the purpose of the remedies is to ensure that the individual is
given fair treatment by the authority to which he has been subjected.
That the function of court is to see the lawful authority is not abused by
unfair treatment and not to attempt itself the task entrusted to that
authority by law.
i) Mandamus
Mandamus is an order requiring any act to be done.
Mandamus refers to an order of court or administrative body
directing any decision making body to perform a certain duty.
Mandamus arises where a public official has neglected,
refused, or failed to carry out a public function, duty or
responsibility. 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.
The complainant must therefore prove the following:
- That there were public duties to be performed (see Stream Aviation
v Civil Aviation Authority on what amounts to a public duty.)
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- That these public duties had to be performed by a particular person
who is a public officer.
- Those duties have not been performed by that public officer.
- The applicant has no alternative remedies (see Stream Aviation v
Civil Aviation Authority)
Procedure for effecting mandamus
The order of mandamus is served on the relevant public officer compelling him
or her to perform the specified public function, duty or responsibility e.g. In
Shah vs Attorney General the High Court issued an order of mandamus to
compel the Treasury Officer of accounts to pay Mr. Shah money due to him
from government.
ii) Certiorari
What is Certiorari?
An order of certiorari is issued by the High Court. Certiorari refers to an
order quashing an illegal decision of an administrative authority or court.
When can it be granted ?
Certiorari may be granted where:
there is proof of failure to follow procedures;
ultra vires exercise of powers or
breach of principles of natural justice.
3 requirements/conditions to satisfy
The remedy may issue upon satisfaction of three requirements;
a)Firstly that the decision maker has authority to determine the questions
which affect the rights of subjects,
b) secondly that the body owes a duty to act judicially and
c) thirdly that the same body acts in excess of its legal authority.
The grounds upon which certiorari can be sought
The grounds upon which the remedy of certiorari is sought in the High
Court :
include judicial/jurisdictional error,
breach of procedural fairness,
error of law on the face of record
fraud.
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Fernandes v Kericho Liquor Licensing Court; The applicant’s license
was not renewed on ground that the applicant was not a Kenyan citizen.
Sec.16 of the Liquor Act provided six disqualifications for renewal and
didn’t include lack of citizenship. Court noted that the expression ‘fit and
proper’ refers to the personal qualities of an applicant and not his
national status. Therefore this was an irrelevant consideration. Lex
Uganda Advocates & Solicitors v AG where the High Court granted an
order of certiorari to quash a decision of the Law Council requiring the
applicant to change its firm name and drop the use of the word ‘Uganda’
from the said firm name.)
iii) Prohibition
This is an order of the High Court stopping a public authority from proceeding with
a particular activity which is deemed to be illegal. This usually arises where a
public authority is acting in excess of its jurisdiction. In Re An Application
of Bukoba Gymkhana Club was prohibited from using irrelevant
considerations in licencing of the Club. In Stream Aviation Limited v The
Civil Aviation Authority (Miscellaneous Application No.377 of 2008)
[2008] UGHC 37 (12 September 2008), court stated that both the
prerogative orders of prohibition and certiorari must go hand in hand.
Thus while Certiorari looks at the past as a corrective remedy, prohibition looks at
the future as a prohibitive remedy. As prohibiting or used to prevent tribunals
from dealing with cases over which they have no jurisdiction. 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"
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Tanga Town Council [1961] EA 377, certiorari order was issued partly on
the ground that a mandatory procedure had not been followed which
amounted to an excess of jurisdiction. Further, In Re an Application by
Bukoba Gymkhana Club [1963] EA 478, certiorari was awarded to quash the
decision of a liquor licensing board on the ground that it took into account
irrelevant considerations.
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The above remedies, i.e. certiorari and prohibition are discretionary and
cannot be granted where the law provides for another applicable remedy
in the circumstances. For example, the remedies will not be available
where statutory appeals are provided for. The courts will normally expect
the applicant to exhaust the applicable local remedies.
The remedy of judicial review is not an appeal from the decision, but a
review of the manner in which the decision was made.
N.B
The above three remedies are orders of judicial review. It is imperative to note that
when deciding whether or not to grant an order of judicial review, court has to bear
in mind that on a judicial review application, the court will not act as “a court of
appeal” from the body concerned. The court shall also not interfere in any way with
the exercise of any power or discretion which has been conferred on an
administrative body, unless that power has been exercised in a way which is not
within that body’s jurisdiction, or the decision is unreasonable. if the court were to
attempt itself, the task entrusted to that authority by the law, the court would,
under the guise of preventing abuse of power, be guilty itself of usurping power.
See Chief constable of North Wales Police v Evans (1982) 1 WLR 1155, at
1173.
Locus Standi
The applicant must also prove that he/she has sufficient interest in the case and
bring about the application. It seeks to determine whether a particular plaintiff is
entitled to invoke the jurisdiction of the court. Locus Standi is deemed to exist in
the following situations:
i) Where a person is a subject of a decision.
ii) Where a person is directly affected by the actions of a public officer or
department e.g. dismissal.
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iii) Where the person is a beneficiary or a member or a successor of an estate of a
deceased person.
EQUITABLE REMEDIES
These include:
- Injunctions
- Declarations
- Damages
Injunctions
An Injunction is a court order requiring the party to whom it is addressed to
refrain from doing a particular act e.g. a tort or a breach of contract. It is also
possible for the court to grant a mandatory injunction i.e. a positive order to do
some act rather than a negative order to refrain. Mandatory injunctions are rare
in Administrative Law because there is a special procedure for enforcing the
performance of a public duty, i.e. mandamus and prohibitions. Injunctions are
provided for under s.38 the Judicature Act.
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An Injunction is a discretionary remedy and may be refused under certain
circumstances
1. Injunctions may not be used to interfere with the processes of Parliament.
See Bradlough Vs Gosset (1884) 12 Q.B.D. 271.
2. Mandatory injunctions compelling a person to do a continuous indefinite act,
where no specific time limit for the doing of the act is given e.g. In A.G. of
Kenya Vs Block and Anor (1959) E.A. 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 lease did not specify a period of time for the road
maintenance. The court refused to grant an injunction, citing the difficulty of
its enforcement. Read Gravesham Borough Council Vs British Railways
Board (1978) Ch 379, (1978) 3 All E.R. 853.
3. The conduct of the applicant since it is an equitable remedy and he who
comes to equity must come with clean hands. See Glynn Vs Keele
University (1971) 2 All E.K. 81, (1971) 1 W.L.R. 487.
Please refer to Judicature Act S. 36 which gives the High Court power to grant
orders of prohibition among other remedies.
Note that an application for judicial review may seek various remedies at the same
time, and a declaration can be combined with other remedies.
The declaration is a particularly useful remedy in Administrative Law. It is an
efficient remedy against ultra vires action by governmental authorities of all kinds.
If the court declares that some action is unauthorized by law that concludes the
matter. It is a suitable way to settle dispute with governmental authorities, since it
involves no immediate threat of compulsion, yet is none the less effective.
2. Where it's result would be to embarrass and prejudice the security of the state
In Opolot Vs A.G. of Uganda (1969) E.A. 631, declaration refused because
its result would be seriously to embarrass and prejudice the security of the
state. The appellant was formerly a Brigadier in the Uganda army and Chief
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of Staff. He was discharged from the army and detained under Emergency
Regulations. He sought a declaration that his discharge was invalid and he
was still a member of the army and the chief of staff and that the Armed
Forces (Discharge) Regulations were invalid.
3. The law will not specifically enforce a contract of service between master and
servant. The master has power to dismiss the servant, and even where there
is a breach of contract, the servant’s remedy is to sue for damages. Therefore,
a dismissed employee cannot obtain a declaration that his dismissal is a
nullity, for in that case, his employment would still continue. It may only
make a declaration that the dismissal .was a breach of contract, thus
establish his right to damages.
Damages
Damages are a sum of money paid by court as compensation for commission of a
tort or breach of contract. The possibility of suing the government and
governmental authorities for damages for tortuous injury or breach of contract are
governed by the Government Proceedings Act. These proceedings can lead to
award of damages. Damages can be classified into special damages, general
damages and exemplary damages.
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Special Damages
These may be claimed in respect of matters whose value can be quantified and
specifically proved; for example through receipts issued to the plaintiff. Read the
case of Kafumbe Mukasa Vs A.G. (1980) HCB. Without receipts or other specific
proof, the cause of action may not succeed.
General Damages
General damages are given for losses that the law will presume are the natural
and probable consequences of the loss. These cannot be specifically
ascertained. They include compensation for pain and suffering, loss of future
prospects, etc. They are awarded at courts’ discretion. Read Repaired Asians
Property Custodian Board Vs Kayondo (1982) HCB 1.
Exemplary Damages
These are given as a deterrent/punishment, where the defendant’s conduct has
been oppressive and arbitrary and highhanded e.g. false imprisonment. These are
usually high in order to have a deterrent effect.
Nominal Damages
Nominal damages are a token sum of damages awarded when a legal right has
been infringed but no substantial loss has been caused.These are damages that
demonstrate that the complainant was correct in bringing his/her claim. They are
normal to show that no loss was however suffered through action or omission of
the party who is asked to pay nominal damages. For example, the court may
award damages of Shs 1,000/- only as compensation where a wrong is committed
without substantial loss is pecuniary or material terms.
NON-JUDICIAL REMEDIES
In many cases, the judicial remedies are not the best placed to address matters of
administrative injustice. Judicial remedies have been criticized because of the
following:
i) They are slow – that in itself is injustice.
ii) They are expensive – may not be affordable by the majority of those who suffer
administrative injustice.
iii) They follow labourious procedures which are not known to the majority.
iv) They sometimes emphasize technicalities at the expense of substantive
justice.
v) Too formal to resolve issues of administrative injustice.
The Constitution and Acts of Parliament have put in place other methods of
resolving issues arising from administrative injustice. These include:
i) Parliament
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ii) Ombudsperson (Inspectorate of Government)
iii) Appointing Authority
iv) Specialized Government Departments e.g. Police, Uganda Human Rights
Commission, Industrial Court.
1ST -PARLIAMENT
Art 79 (3) enjoins Parliament to ensure that the Constitution and democratic
governance prevails. Parliament can therefore intervene in any matter which has
the effect of eroding constitutionalism, democratic governance or accountability.
Parliament exercises this general mandate through the following measures:
a) Standing Committees of Parliament can summon any Minister or public officer
and demand explanations on any matter of public concern within the relevant
department of government. Parliament can initiate this process or can act on
complaints or petitions raised by any member of the public.
These Committees of Parliament have powers of the High Court and can
summon and compel attendance of witnesses, production documents and other
evidence. The Committee of Parliament can recommend further action against
a public officer by the relevant departments e.g. DPP, Police, Inspectorate of
Government, Auditor General, etc.
c) Under Act. 118 of the Constitution, Parliament can censure Ministers for
incompetence, abuse of office, misconduct, misbehaviour or inability to perform
the function of Minister. This function makes Ministers individually
responsible to Parliament for the performance of their departments. Parliament
is expected to use this power to make Ministers accountable for their action. It
has happened in the case of censorship of Sam Kuteesa and Jim Muhwezi.
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d) Parliament can also use its budgetary powers to deny funds to a government
department which misuses its powers. Funds may be withheld until Parliament
has received satisfactory explanation on the conduct of public officials or
actions of a government department.
Question
Assess how Parliament has discharged this responsibility in respect of:
a) Accountability
b) Abuse of powers
Give your views in reference to particular case studies
These bodies are usually given powers to appoint, promote and exercise
disciplinary control over their appointees e.g. Art. 166 of the Constitution provides
that the Public Service Commission shall have power to appoint, promote and
exercise disciplinary control over persons appointed in the public service. Matters
of abuse of public powers may therefore be referred to the appointing authority for
appropriate action.
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Where the law provides for disciplinary action to be exercised by another authority,
the complaints against the public officer concerned should be channeled to the
specific authority e.g. the President appoints Permanent Secretaries but
disciplinary action can only be taken against them by the Public Service
Commission.
PENAL PROVISIONS
These are penal provisions which are aimed at punishing public officers and other
persons who misuse their public offices. These provisions have prohibition which
relate to public officers and offences should not be committed by public officers.
These are also specific punishments for breach of these provisions. Parliament
enacted the Anti-Corruption Act, 2009 to provide for effectual prevention of
corruption in the public sector and to consequentially amend the Penal Code Act.
Under the Act the following offences are created inter alia:
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