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DEPARTMENT OF LAW AND CONTINUING LEGAL EDUCATION

DIPLOMA IN LAW

KAMPALA CAMPUS

COURSE TITLE: ADMINISTRATIVE LAW

LECTURER (S):

Paul MUKIIBI (Head, Department of Law Reporting, Research and

Law Reform & Professional Advisor, LDC)

COURSE LEADER: Mr. Precious B. NGABIRANO (Head, Department of

Law & Continuing Legal Education & Professional Advisor, LDC)

TOPIC 07: GOVERNMENT PROCEEDINGS

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TOPIC 07: GOVERNMENT PROCEEDINGS

CONTENTS
1.0. INTRODUCTION
2.0. OBJECTIVES
3.0. MAIN CONTENT
3.1. Meaning of Government Proceedings
3.2. When is Government Liable?
4.0. Circumstances giving rise to Government Proceedings
4.1. Contract
4.1.1. Unenforceable Contracts
4.2. Characteristics of Government Contracts
4.3. Torts
4.3.1 Vicarious Liability
4.3.2. Employer’s Liability
4.3.3 Occupier's liability
4.3.4 Trespass to a person
5.0. Exceptions to liability
6.0. Procedural Matters
7.0. CONCLUSION
8.0. SUMMARY
9.0. ASSIGNMENT/REVISIONAL QUESTIONS
10.0. REFERENCES/FURTHER READING

1.0. INTRODUCTION
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

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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 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 judgment
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.

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. 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.

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In Uganda, the Government Proceedings Act (GPA) was modeled on the Crown
Proceedings Act 1947. The GPA makes it possible for government to be sued as if it was
a private person. GPA is 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.

The topic shall focus on government proceedings generally and specifically liability of
government, circumstances leading to its liability, procedure in suing government,
immunity/privilege and orders sought against government.

2.0. OBJECTIVES
At the end of this topic, you should be able to:
 explain the meaning of Government Proceedings;
 explain the historical background to government proceedings;
 analyse the scope of government proceedings;
 discuss circumstances giving rise to government proceedings;
 examine the exceptions to government’s liability; and
 appreciate procedural matters concerning government proceedings.

3.0. MAIN CONTENT

3.1. Meaning of Government Proceedings
The term “government proceedings” means a suit to which Government is a party.
Section 2(gg) of the Interpretation Act, Cap 3 defines Government to mean, “the
Government of Uganda”. In law, a party is any person whether physical or legal,
having an interest in the subject matter of a dispute. The law recognizes Government as
a legal person. It has a right to sue and to be sued. According to the Constitution of the
Republic of Uganda 1995, all proceedings of a civil nature by or against Government
must come in the name of the Attorney General (Article 250 (2) of the Constitution and
S.10 of the Government Proceedings Act, Cap. 77).

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3.2. When is Government Liable?

The Government Proceedings Act imposes legal liability on government in respect of;
a) contracts
b) torts
c) breach of statutory duty
d) any breach of those duties which a person owes to his servants or agents at common
law by reason of being their employer.

The classic view was to restrict Government proceedings to cases involving breach of
contract, commission of a tort and infringement of an intellectual property right (S.2, 3
& 4 of the GPA, Cap. 77). However, the enactment of the Constitution of the Republic
of Uganda, 1995 (as amended) seen to have widened the earlier scope by providing to
suits for enforcement of fundamental rights freedoms and suits for constitutional
interpretation, both categories of which will usually have Government as the
Respondent party (Articles 50 and 137 of the Constitution). Be that as it may, the
emphasis shall be made on cases involving breach of contract and commission of torts.

4.0. Circumstances giving rise to Government Proceedings

4.1.Contract
Under common law, liability under contract could only be enforced by way of a royal
fiat. The GPA provides that government may be sued in contracts as if it was a person.
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 its obligation under contracts. 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 Constitution, public service laws,
public service regulations and standing orders.
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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.

4.1.1. 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.  

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
(ratified).

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As a legal person, the Government of the Republic of Uganda can enter binding
contracts subject to compliance with the requirements of Article 119 (5) of the
constitution. This article sets a condition precedent that all contracts by Government of
any agency or organization to which Government has an interest must be made upon
the prior advise of the Attorney General. Where such contracts are made, they create
rights and duties which are enforceable before of law. Government can sue any party
which breaches a contract. E.g. the Tullow Oil case. Similarly Government can be sued
for breach of such contract e.g. the Dott Service’s case.

The right to sue government for breach of contract is contained in the Government
Proceedings Act (S.2 (a) of the Government Proceedings Act Cap. 77). However
liability of government for breach of contract will a raise when a suit is filed within
three years from the date of cause of action accrued (S.3 (2) of the Civil Procedure and
Limitation (Miscellaneous Provisions) Act, Cap.72).

4.1.2. Characteristics of government contracts

i) 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;

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.

ii) They are usually executed after the tendering process; it is an open and competitive
bidding process.

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iii) Entered on standard terms and conditions of contract, government sets terms and
conditions and the other party usually accept what has been set or bargain from what
has been set.

4.3. TORTS
A tort is defined as a civil wrong caused as a result of a breach of duty fixed by
Common-law, giving rise to a claim unliquidated damages. Example of torts include
trespass (Assaults, battery, wrongful arrests, false imprisonments, malicious
prosecutions etc) trespass to goods (Conversions and detinue); and trespass to land.

Another category of torts is negligence i.e. failure to observe a duty of care. There is also
defamation i.e. the publication of false statement intended to injure the reputation of a
plaintiff in the eyes of the right thinking members of society etc.

Therefore, common law gives a right to a victim of any of these civil wrongs (torts) to
sue the wrongdoer for damages. Government is liable for tors committed by its servants
or agents during their ordinary course of duties (S.3 of the Government Proceedings
Act, cap 77). While the term “servant”, is restricted to employees, “agent” is wide and
extends to independent contractors hired by Government within two years from the
date in cause of action accrued ( S.3(1) of the Civil Procedure and Limitation
(Miscellaneous Provisions) Act, Cap 72). An exception to this legal requirement can
only arise when a plaintiff successfully pleads disability.

Government liability on torts arises by virtue of the principle or vicarious liability.

Under this principle, a master or employer will suffer damages for civil wrongs
committed by his servants or agents during their ordinary course of duty; no matter
where such action/omissions were authorised or not, were lawful or not (Muwonge v
Attorney General).

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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.

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.

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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, 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 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 of the GPA Cap 77 above, government is liable in torts under the following
limbs;
i) Vicarious liability

ii) Employer's liability

iii) Occupiers liability.

4.3.1. 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 the state commits a tort in the course of his employment, the servant and the
state are jointly and severally liable. 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.

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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) EA 7, New Bold P stated that the policemen had been sent
to quell a riot and the means given to them was the rifle. Having found the riot going
on, one of the police fired just like others. For 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 masters
business or duties. See also 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.

4.3.2. 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.
These include;
a) Responsible 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.

4.3.3. 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
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under common law are attached to 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  nuisance.

4.3.4. Trespass to a person

This is a wide connoting any form of direct and international invasion of a person’s
liberty to freedom. Article 23(1) of the Constitution prohibits against any form of
deprivation of personal liberty to freedom such as arrests or detention; except under the
following;
a) An execution of a sentence passed by a competent court of law/tribunal in
respect of a criminal conviction.
b) An execution of a court order/decree passed by a competent court to enforce a
civil judgment committing a judgment debtor to a civil prison.
c) Upon where a court has issued a warrant of arrest against a suspect or witness
for purposes of compelling their attendance before that court/tribunal.
d) For the purpose of compelling a child to attain education.
e) For protection of society against or for the personal treatment of a person
reasonably suspected to be of unsound mind or one addicted to drugs and
alcohol.
f) For protecting the sovereignty of Uganda against entry by illegal immigrants.

Where a person is arrested he or she shall;

a) Be detained in a place authorized by law.
b) Produced to court within 48 hours or otherwise released on police bound (Art.
23(2) & 4 (b) of the Constitution). It is against this background that the right to an
order of habeas corpus has been made inviolable (Art.23(9) of the Constitution)
c) Article 23 on human liberty to freedom is further supported by art.24 thereof
which provides that no person shall be subjected to any form of torture, r cruel
inhuman or degrading treatment or punishment.

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Be as it may, the duty to maintain law and order on the part of Government has
sometimes conflicted with the individual interest to personal liberty leading to
circumstances of trespass to a person. Most of the litigation under this area surround
torts such as assault and battery, wrongful detention/false imprisonment and malicious
prosecution.
i) Assault and Battery.
An assault means the direct and international threat targeting the plaintiff leading to an
apprehension that his life is in danger of the unlawful attack on his person. To be
actionable, the plaintiff needs to prove that the threat was made by a person capable of
executing it and in such circumstances of anger and annoyance. Mere abusive words
not accompanied by any action cannot amount to an assault. Lastly, the threats must be
seen to yield immediate results. Therefore, any threat by the defendant that he will
inflict future danger on the plaintiff is not actionable. On the other hand, a battery
means an assault effected to its logical conclusion. It thus means the striking of the
plaintiff’s body by the defendant while under anger. Any slightest touch or pushing of
the plaintiff’s body by the defendant while under anger. Any slightest touch or pushing
of the plaintiff’s body made by an angry defendant constitutes a battery. Therefore,
while the chasing of a person facing an arrest by a police officer may constitute an
assault on him, the actual arrest which involves touching his body in anger does
constitute a battery, and may be actionable unless made under justifiable circumstances.

ii) Wrongful arrest/false imprisonment

While it is a right of every person facing danger to report the suspect to police, a
complainant must act on reasonable suspicion before setting the law into motion. If he
does this and the police in the course of investigating such a complaint basing on its
own judgment takes a decision to arrest the person complained against and take him to
a police station, then such arrest is lawful and no action for wrongful arrest can lie
against the complainant (John Mubiru v Attorney General [1984] HCB 46). Likewise
arrests engineered by police officers themselves must also be based on reasonable

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suspicion that the person being arrested has committed a cognizable offence, is
committing a cognizable offence, or is likely to commit a cognizable offence. Anything
falling below the standard will render the arrest wrongful in Samuel Kaggwa
Byekwaso v. Attorney General [1982 HCB 101, the plaintiff. Manager of National
Textiles Board sued the defendant for unlawful arrest and detention. The Plaintiff had
been arrested by two uniformed army men, two uniformed police men and a uniformed
prison warder and detained at a police station for 36 days, on allegations that he had
committed offences of selling fabric at exorbitant prices contrary to the provisions of the
Economic Crimes Tribunal Decree. The plaintiff was as a result subjected to bad
treatment, sometimes going without food and generally kept like a common criminal.
After about two weeks while in custody, the Director of Public Prosecutions (DPP)
advised the Prison authorities to release him, which advice was ignored. He was finally
released without being charged and re-admitted to his former officer of employment.

5.0. Exceptions to liability

Liability of government may be limited in certain circumstances e.g;
i) 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.

ii) 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.

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iii) Act of state doctrine as a defence.

This means that transaction between state and foreign powers cannot 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 cannot lie in a municipal court. Court
held not acceptable to sue state. In Katikiro of Buganda Vs AG, the State successfully
pleaded an act of state doctrine relating to 1955 Buganda agreement.

iv)Torts committed by members of armed forces, as member of the armed forces

cannot sue government for personal injuries which are inflicted by another member of
the forces while on duty.

5.0. 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.

a) Statutory notice.

S.2 of Civil Procedure and Limitation (Miscellaneous Provision) Act 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 is that the
notice should have been served to appropriate officer (Attorney General) or the head of
scheduled corporation or CAO in Local Government. The requirement of notice is based
on the idea that on receipt of notice, government will make a decision as to whether it is
necessary to entertain the suit.

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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 section also provides that
the plaint against the government must also include the clause specifically pleading that
notice was served. The recent decision of Kabandize Joseph and 20 Ors vs AG has
somehow affected this requirement.

b) Suits against the government are brought against the AG

Under Article 119 of the Constitution, 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.

c) Suits against AG may be brought in any court which has jurisdiction over the
matter in question.

The AG may however, apply 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 law may arise from that suit. This is provided under section 13 of
the GPA.

d) 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.
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Other rules which give special exemption to government relate to remedies and
evidence. Remedies in civil proceedings may with a few 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. one cannot
attach government property. Section 19(4) of the GPA Cap 77 is to that effect. 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 of the Civil Proceeding and Limitation Act provides that an injunction, specific
performance and attachment cannot be awarded.

S.19 of GPA provides for the state fiction of orders against government where if a
person has had a suit ruled in their favour and costs awarded, he can make an
application in that respect after the expiration of 21 days from date of the order or in
case the costs have to be taxed after they have been so taxed for a certificate of court that
the order of costs be paid.

d) An exparte judgment cannot be made in default of appearance of government under

the Government Proceedings (civil procedure) Rules.

e) State privilege in the law of evidence as per S. 121 of the Evidence Act as well as 132.
They give the state privilege in the law as regards to evidence, that a public officer
cannot be compelled to give evidence relating to confidential government
communication. See Article 41 of the Constitution. Also see, Tinyefuza Vs AG
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In light of the above, is it a justifiable protection of the state? Are they in line with the
constitution and judicial precedent set in the Tinyefuza case?

7.0. CONCLUSION
Government proceedings today are no longer an absolute bar as it used to be under
common law. There are several actions that can be brought against government and the
law requires government to defend the same. That notwithstanding, government still
enjoys immunity from civil proceedings in exceptional cases.

8.0. SUMMARY
In this topic, we have discussed Government proceedings, its origin, scope,
characteristics, procedural requirements and exceptions. We have also discussed the
orders that can be granted against government and those cannot be granted.

9.0. ASSIGNMENT/REVISIONAL QUESTIONS

1) Explain what you understand by the term Government Proceedings.
2) Discuss four categories of suits that may form subject of Government
Proceedings.
3) Explain the origin of liability of government under Common Law.
4) Explain the orders court can issue against government.
5) Discuss the exceptions to liability of government in civil matters.

10.0. REFERENCES/FURTHER READING

 The Constitution of the Republic of Uganda, 1995.
 The Judicature Act Cap. 13, Laws of Uganda.
 The Government Proceedings Act cap. 77
 The Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap 72

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 Hood, P. (2001), Constitutional and Administrative Law (7th edn.) London: Sweet
& Maxwell.
 Wade & Bradley. (1985), Constitutional and Administrative Law, (10th edn.)
London: Longman.
 Iluyomade, B. O. & Eka, B. U. (1977). Cases and Materials on Administrative
Law in Nigeria. (2nd ed.) Ile-Ife: Obafemi Awolowo University Press Limited.
 Malemi, E. (2008). Administrative Law. (3rd ed.) Ikeja: Princeton Publishing Co.

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