FACULTY OF LAW

EVIDENCE LAW 2

CONTINOUS ASSESSMENT TEST 2 WEEK 3

LUGANDA GEOFREY 025/177

In the case of Motor Centre East Africa Ltd v. PPDA, Miscellaneous
Cause No. 90 of 2011, Justice Yorokamu Bamwiine held that ultra-
vires means beyond the scope, in excess of legal power or authority,
in excess of the authority conferred by law. With the help of recent
court decisions, discuss the doctrine of ultra vires and how it
manifests itself in Uganda.
The doctrine of ultra vires is the basic doctrine in administrative law. The doctrine envisages
that an authority can exercise only so much power as is conferred on it by law. An action of
the authority is intra vires when it falls within the limits of the power conferred on it but ultra
vires if it goes outside this limit. The simple proposition that a public authority may not act
outside its powers (ultra vires) might fitly be called the central principle of administrative law.
‘The juristic basis of judicial review is the doctrine of ultra vires.’ To a large extent the courts
have developed the subject by extending and refining this principle, which has many
ramifications and which in some of its aspects attains a high degree of artificiality.

When a power vested in a public authority is exceeded, acts done in excess of the power
are invalid as being ultra vires. The ultra vires doctrine serves to control those who exceed
the powers, which an Act has given. For example, where a local council whose capacity to
act and to regulate private activities is derived from statute, acts outside the scope of that
authority. In many fields parliament has provided no right of appeal against administrative
decisions. Nonetheless the superior courts still exercise a supervisory jurisdiction on
matters such as limits of an authority's powers, which affect the legality of official decisions.
In exercising this jurisdiction, the courts take account of the principles of administrative law
that have developed from judicial decision, and also the specific legislation that applies to
the subject matter.

When a piece of delegated legislation is declared to be ultra vires it is void and becomes
unenforceable. It cannot affect the rights and duties of any person. The validity of a rule can
be challenged in a court either directly or collaterally, or by way of defence to a civil claim
based on the impugned rule, or as a defence in a prosecution for infringing the rule. A
person can challenge the validity of administrative action by challenging the validity of the
relevant rule. A person whose interest is affected adversely by a piece of delegated
legislation can directly challenge its vires in a court. This discussion will examine the
doctrine of ultra vires and how it has manifested itself in Uganda.

The doctrine of ultra vires has two aspects: substantive and procedural.

Substantive ultra vires means that the delegated legislation goes beyond the scope of the
power conferred by the parent statute, or it is in conflict with the delegated statute, and
hence, it is invalid. The doctrine refers to the scope, extent and range of power conferred by
the parent Act on the concerned authority to make rules. A rule has to yield to the statutory
provision. The rule must also come within the scope and purview of the rule making power
of the authority framing the rule. While applying the doctrine of substantive ultra vires to
delegated legislation, the courts do not look merely at the express words of the enabling
provision in the parent statute, but go beyond them and also imply certain restrictions
therein. The idea is that the courts do not want the executive to do certain things by using its
general rule-making power without being specifically authorized by law to do so. This
approach, to some extent, helps in preservation of individual liberty, strengthening of judicial
control over delegated legislation, and giving a somewhat broader dimension to the doctrine
of ultra vires.

Procedural ultra vires comes into play when the Parent Act prescribes certain procedures
which the delegate has to follow. It is the basic principle of law long settled that, if the
manner of doing a particular act is prescribed under any statute, the act must be done in
that manner or not at all. A question arises whether the rules made without following the
prescribed procedure are to be regarded as valid or not. The answer to this question
depends upon whether the specific procedural requirement is regarded as directory or
mandatory. A statute may lay down some procedural requirement for exercising
discretionary power conferred by it. An exercise of discretionary power may be invalid
because the concerned authority has failed to comply with the statutory procedural
requirements as mandatory or directory. Non-compliance with a mandatory requirement
makes the discretionary decision ultra vires. This is known as procedural ultra vires. The
concept of ultra vires manifests in the following ways;

1. Acting beyond powers given

Public authorities should do what is authorized and should avoid doing beyond what is
authorized. In Mohammed Zziwa Kizito & 3 others vs. Spidiga Umma foundation HCCS No.
012 of 2008 Justice Yorokamu Bamwiine held that an act in excess of the authority
conferred by law is ultra vires and therefore invalid.

Statutory power given should not be used to do what is illegal. In Mbui Koinage vs. R (1951)
2 KLR 13O, power was given to the governor to make rules for purposes of controlling
cultivation and handling of coffee and the statute giving power to the governor to endure
that there would be quality coffee. He made rules that Africans would only grow coffee in
scheduled areas. Mbui challenged that it was ultra vires because it was discriminative in
nature and hence illegal. He went beyond the scope of the ordinance whose purpose was to
ensure that production was in line with regulation but not discriminative areas and people to
produce. It was held that the effect of the regulation was infringing on the fundamental rights
of persons in so far as it was discriminative, contrary to present article 21 of the constitution,

2. Abuse of discretion power whereby power is unreasonable, arbitrary and

discriminatory.

All powers are exercised by public authorities are liable to be misused. Work constitute of
misuse of public power is the subject matter of the judicial review and the Courts intervene
in case of such misuse of power. Ultra vires doctrine confines public authorities to those
powers granted by the parent Act. But the courts are also concerned to see that not only
whether power exercised exists but also whether it has been exercised reasonably. In
METROPOLITAN ASYLUM V HILL (18161 APP.CAS. 143 It was emphasized that
legislature does not give power to public authorities to use it the way they want; the
legislature might have intended a side which must be respected.

Ultra vires may also arise where wrongful delegation of functions. Under normal
circumstance a delegate gets some power to act on behalf of the principal. Delegation
should be recognized as valid and attentive unless shown that in such circumstances the
delegation of power was wrongful.

Once there is delegation it cannot be transferred to a 3rd party for the exercise by a 3rd
party will thence be ultra vires. The principle of principal — agent applies to limit the agent’s
powers to a personal execution of the agent’s duties.

Where it is said that delegates shall not delegate; the local government act gives power to
local court to amend the schedule of the local government Act. It also states a minister shall
not delegate such power
Judicial or quasi-judicial power cannot be delegated, thus a person in power must act
individually.

3. Procedural impropriety

Procedural impropriety is when there is a failure to act fairly on the part of the decision
making authority in the process of taking a decision. The unfairness may be in the non-
observance of the rules of natural justice or to act with procedural unfairness towards one to
be affected by the decision. It may also involve failure to adhere and observe procedural
rules expressly laid down in a statute or legislative instrument by which such authority
exercises jurisdiction to make a decision.

In the case of COUNCIL OF CIVIL SERVICE UNIONS VS. MINISTER OF THE CIVIL
SERVICE (1984) 3 ALLER 935, procedural impropriety was defined by Diplock as follows, I
describe the third head as procedural impropriety rather that failure to observed basic rules
of natural or failure to act with procedural fairness towards the person who will be affected
by the decision. This is because susceptibility to judicial review under procedural rules that
are expressly laid down in the legislative instrument by which its jurisdiction is conferred,
even where such failure does not involve any denial of natural justice.

4. Acting outside jurisdiction

It is well-settled that there can be no exercise of power unless such power exists in law. If
the power does not exist, the purported exercise of power would be non-existent and void.
Likewise, where the source of power exists, exercise of it is referable only to that source
and not to some other source. But if a source of power exists, mention of wrong provision or
even omission to mention the provision containing such power will not invalidate such order.

In R. v. Minister of Transport, even though the Minister had no power to revoke the licence,
he passed an order of revocation. The action was held ultra vires and without jurisdiction.
Similarly, if the appropriate government has power to refer an "industrial dispute" to a
tribunal for adjudication, it cannot refer a dispute which is not an industrial dispute. Again, if
a taxing authority imposes tax on a commodity exempted under the Act, the action is
without authority of law.
Jurisdiction may also be a basis for challenging an action taken by an authority or persons.
It does not matter whether he was part of the authority. In Dent V Kiambu (1968) EA 8, non-
members of the legalized supreme court were allowed to sit participate in the proceedings
and even vote as to whether dent should get a license. He challenged the decision on the
ground that nonmembers voted in decision to deny him a license. It acted ultra- vires by this
conduct. Furthermore, ultra-vires will also be deemed to exist where a public body makes a
decision when it is not properly constituted of persons in attendance or proceedings with
necessary quorum.

5. Exceeding Jurisdiction

An administrative authority must exercise the power within the limits of the statue and if it
exceeds those limits, the action will be held ultra vires. A question whether the authority
acted within the limits of its power or exceeded it can always be decided by a court.

For example, if an officer is empowered to grant a loan of 50m in his discretion for a
particular purpose and if he grants a loan of 100m, he exceeds his power (jurisdiction) and
the entire order is ultra vires and void on that ground.

6. Irrelevant Considerations

Discretionary powers are usually given to public authorities to be able to decide taking into
account relevant facts. Public authorities are therefore expected to gather the relevant
information before making a decision. This relevant information may come from contending
parties; for example. Information available from the locality scientific or technical knowledge.

In BUKOBA V JAMKAUNA CLUB (1963) EA 468, the club applied for renewal of its licence.
The licensing authority refused to issue the license on ground that the club was still largely
discriminatory due to its method and criteria. This club had held a license for 30 years. All of
a sudden, the licensing of authority demanded to know how members were admitted and
the requirement was introduction of a new member by an older member, on refusal to grant
them a license, they applied to the high Court which of discretion regarded the issue of an
abuse of discretion.

7. Where power is used for improper purposes

Discretionary power is given to public authorities for purpose of achieving the particular
objective of statute. The objectives of a particular statute are spelt and in that statute. The
general objective is that statutory discretionary power must to achieve the objectives of the
statute as therein contained. The objectives of a particular legislation are usually laid out at
the beginning of a relevant statute. Statutory power of discretion should not be used to
achieve purpose other than those set out in the statute.

In SYDNEY MUNICIPAL COUNCIL CAMPBELL (19251 AC 338 where a local council had
powers to acquire land for purposes of developing the city but council acquired land for
purposes of speculation for future profits. The discretion was abused. The decision was
challenged on the group that the authority had used the power for improper purpose.

8. Illegality/ Colourable Exercise of Power

Where a power is exercised by the authority ostensibly for the purpose for which it was
conferred, but in reality for some other purpose, it is called colourable exercise of power.
Here, though the statute does not empower the authority to exercise the power in a
particular manner, the authority exercises the power under the 'colour' or guise of legality.

This is also known as fraudulent exercise of power. The doctrine is based on the principle
that an administrative authority cannot exercise power for a purpose not warranted by law.

Illegality was defined in the case of OJANGOLE PATRICIA & 4 OTHERS VS. ATTORNEY

GENERAL MISC CAUSE NO.303 OF 2013 as “When the decision making authority
commits an error of law in the process of taking the decision or making the act, the subject
of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of a
law or its principles are instances of illegality.”
In the case of FR. FRANCIS BAHIKIRWE MUNTU & 15 OTHERS VERSUS KYAMBOGO
UNIVERSITY, HIGH COURT MISCELLANEOUS APPLICATION NO.643 OF 2005 court
also defined illegality as when the decision making authority commits an error of law in the
process of taking its decision. An exercise of power that is not vested in the decision making
authority in such an instance, acting without jurisdiction or ultra vires are instances of
illegality. A decision maker who incorrectly informs him/herself as to the law or who acts
contrary to the principles of the law is guilty of an illegality...
 9. Irrationality

Irrationality is when there is such gross unreasonableness in the decision taken or act done
that no reasonable authority, addressing itself to the facts and the, law before it, would have
made such a decision. Such a decision is usually in defiance of logic and acceptable moral
standards.

In the case of COUNCIL OF CIVIL. SERVICE UNIONS VS. MINISTER FOR THE’ CIVIL

SERVICE (L984) ALL ER’935, Lord Diplock held page 950 ‘…By ‘irrationality” I mean what
can be now succinctly referred to as “Wednesday unreasonableness. Irrationality applies to
a decision which is so outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question to be decided could
have arrived at it. Whether a decision falls within this category is a question that judges by
their training and experience should be well equipped to answer, or else there would be
something badly wrong with our judicial system.

10. Imposing fetters on discretion

An authority entrusted with discretionary power must exercise the same after considering
individual cases. Instead of doing that if the authority imposes fetters on its discretion by
adopting fixed rules of policy to be applied in all cases coming before it, there is failure to
exercise discretion on the part of that authority.

Public authority is deemed to have abused its power where if fetters the discretionary power
For example; restrict itself. Discretionary powers must be exercised by persons or
authorities, who have been that power. Any transfer of discretionary power is deemed to be
unlawful. Divesture of discretionary may also arise as a matter of policy as a result of
dictation it can also arise because of the effect of estoppel. In R. v. Metropolitan Police
Comr., a chief constable adopted a rigid rule not to institute any prosecution at all for an
anti-social class of criminal offence. The action was held to be bad.

11. Acting under Dictation

Sometimes, an authority entrusted with a power does not exercise that power but acts
under the dictation of a superior authority. Here, the authority invested with the power
purports to act on its own but ‘in substance’ the power is exercised by someone else. The
authority concerned does not apply its mind take action on its own judgment, even though it
was not so intended by statute. In law, this amounts to non-exercise of power by the
authority and action is bad.

It is well-settled that if the authority permits its decision to be influenced by the dictation of
others, it would amount to abdication and surrender of discretion. If the authority ‘hands
over its discretion to another body it acts ultra vires.’

Thus, in ORIENT PAPER MILLS V. UNION OF INDIA, under the relevant statute, the
Deputy Superintendent was empowered to levy excise. Instead of deciding it independently,
the Deputy Superintendent ordered levy of excise in accordance with the directions issued
by the Collector. The Supreme Court set aside the order passed by the Deputy
Superintendent.

12. Acting without evidence

Discretionary powers must be exercise judiciously decisions must involve the application of
evidence to the relevant provisions of the law where a public authority acts without evidence
then there’s likely to be breach of rules regarding fairness and justice. Art 42 would be
contradicted which requires that all persons who appear before administrative bodies be
treated fairly and justly. Article 28 would as well be contravened, as it requires that in
determination of right and obligations, all people should be accorded a fair hearing.

13. Non-observance of Natural Justice

The rules of natural justice require that a person who is a subject of inquiry- be given a right
to be heard and one of the element (Ridge V Baldwin) of the right to be heard is that a
person who is affected must be given the substance of the accusations; he should also
attend proceedings and get the substance of evidence which is labeled against him. A
person has a right to cross examine any person who is testifying against him and challenge
any document or evidence which has been tendered against him.

By now, it is well-settled law that even if the exercise of power is purely administrative in
nature, if it adversely affects any person, the principles of natural justice must be observed
and the person concerned must be heard. Violation of the principles of natural justice makes
the exercise of power ultra vires and void.
 14. Non-application of mind

When a discretionary power is conferred on an authority, the said authority must exercise
that power after applying its mind to the facts and circumstances of the case in hand. If this
condition is not satisfied, there is clear non-application of mind on the part of the authority
concerned. The authority might be acting mechanically, without due care and caution or
without a sense of responsibility in the exercise of its discretion. Here also, there is failure to
exercise discretion and the action is bad.

15. Mala fide

Every power must be exercised by the authority reasonably and lawfully. However, it is
rightly said, ‘every power tends to corrupt and absolute power corrupts absolutely.’ It is,
therefore, not only the power but the duty of the court to see that all authorities exercise
their powers properly, lawfully and in good faith. If the power is not exercised bona fide, the
exercise of power is bad and the action illegal.

Though precise and scientific definition of the expression ‘mala fide’ is not possible, it
means ill-will, dishonest intention or corrupt motive. A power may be exercised maliciously,
out of personal animosity, ill-will or vengeance or fraudulently and with intent to achieve an
object foreign to the statute.

16. Collateral purpose: Improper object

A statutory power conferred on the authority must be exercised for that purpose alone and if
it is exercised for a different purpose, there is abuse or power by the authority and the
action may be quashed. In other words, “a power used under the misapprehension that it
was needed for effectuating a purpose, which was really outside the law or the proper scope
of the power, could be said to be an exercise for an extraneous or collateral purpose.”

Conclusion.

Ultra-vires means acting beyond the powers. The objective of administrative law is to
ensure that powers should be exercised by proper authorities which are to follow
established procedures to do particular things without acting ultra-vires. This enables the
public to be certain as to who is authorized to do a particular thing. The concept of ultra-
vires is to control the actions by a public body not authorized necessarily, or by implication,
by law. Thus, since anything done not authorized by law is ultra-vires, judicial review will
stop the unlawful action.

It enables us to know the scope of powers which are given. It therefore minimizes the
possibility of abuse. One is said to act ultra-vires when he acts outside the jurisdiction of an
officer or a public body.