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ABUSE OF POWER

By
Chitengi Sipho Justine
PhD Candidate; LLM; LLB; BSc; PG
Cert; CPD; PG Cert; AHCZ
And
George Mpundu Kanja
LLM; LLB; PG Dip; AHCZ

Structure of
Presentation




Introduction
Grounds of Abuse of Power
Bad Faith
Improper Motive
Relevant and Irrelevant
Considerations
• Unreasonableness
• Proportionality

Introduction
• An administrative authority which is
vested with discretionary powers will
be acting ultra-vires if it abuses its
powers.
• The various ways through which such a
body may be said to have abused its
powers have been considered in the courts
in many cases, and yet writers and judges
are still not agreed on what truly
constitutes abuse of power.

Introduction
• The following are a few of the things
that have been considered to be
manifestations of abuse of power:
 disregard of public policy;
 proceeding from bad faith or
improper motives,
 exercising
the
powers
with
malicious
intent
or
even
unreasonably.

and thus will be acting ultra-vires are: • (i) Bad faith. or • (iii) Irrelevant considerations Relevant Considerations or • (iv) Unreasonableness and . or • (ii) Improper motives.Grounds for Abuse of Power • The grounds upon an administrative body or decision maker exercising discretionary powers can be challenged for abuse of power.

that has not precluded the courts from attempting to clarify what each of these elements implies. and on some cases merge into each other completely. • Nonetheless. . and when power ready be said to have been abused by the administrative authority. they actually overlap a lot.Grounds for Abuse of Power • Though these principles are itemized here as individual elements of the general principle of abuse of power.

but…. .237) as: • “The concept of bad faith eludes precise definition.BAD FAITH • Professor de smith defined bad faith (de Smith. “ The abuse of statutory power” P. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise”.it may be said to comprise dishonesty and malice. A power is exercised dishonestly if its repository intends to achieve an object other than that for which he believes the power to have been conferred. His intention may be to promote another public interest or his own private interest.

115. A. • Also bad faith is a difficult ground to advance as an independent ground for judicial control or in judicial review. City council of Kitwe [1967] Z.J.R.G. quashed a decision of a local authority canceling the trading license of the applicant.BAD FAITH • Bad faith presents some difficulties such as its similarity with other principles such as improper motives and irrelevant considerations. • The court found that in reaching the decision the council had been influenced by political considerations which were irrelevant. • In Chilufya v. . Maloon.

said on page 127: “Its (the Council’s) decision was materially influenced by political considerations and was therefore a decision taken in bad faith”. Glasgow Corporation [1951] 1 All E. • In Demotrades v. .R.BAD FAITH • Mallon.457. Page 460. bad faith is a difficult ground to rely on to the exclusion of other grounds.J. the court stated that bad faith should be expressly pleaded and supported by specific allegations of facts. AG. • All in all.

• The applicator of this principle was well illustrated in the then Southern Rhodesia Town and country planning Tribunal judgment in the case of Banfiled v.211. .Improper Motives Purpose • The exercise of Power from improper motives or in order to achieve a purpose other than the one for which the power was granted is also a form of abuse of power. The Salisbury North-East Town Planning Authority [1957] R&N.

.Improper Motives Purpose • The Planning Authority approved the appellant’s plan for a house with a condition the effect of which could have deprived the applicant of the use of three-quarters of an acre of his land. A. however laudable the intentions of the body concerned may have been”. • The Respondent explained that the condition was imposed to allow for a contemplated road which was part of a draft scheme then at the preliminary stage. • Lewis.P held that “Powers given to a body for one purpose cannot be used to bring about another ulterior result.

• Like bad faith. will not be permitted to exercised its powers for different purposes”. 343. . the ground of improper motives cannot be successfully relied upon unless it is supported by allegations of fact.C. at P. Campbell [1925] A. authorized to take land compulsory for specific purpose. the Judicial committee of the privy council stated that “a body such as the municipal Council of Sydney.Improper Motives Purpose • Also in Municipal Council of Sydney v. 338.

to arrive at conclusions which appear to vitiate or reduce or destroy the effectiveness of this principle as a ground for checking administrative powers. . especially where as is often the case. • Consequently it is common for courts because of the elusiveness of the facts. authority at issue does not disclose the object it aims to achieve by a particular act or decision.Improper Motives Purpose • But then it is not easy to prove the motives of an act.

M. the court of appeal was called upon to consider an allegation that in making a deportation order for an alien to be deported to the USA the Home Secretary was actually motivated by a request from the USA.Improper Motives Purpose • In R. ex parte Soblen [ 1963] 2 Q. 243 . • Lord Denning.V. . agreed that “If…the purpose of the Home Secretary… was to surrender the applicant as a fugitive to the USA because they had asked for him then it would be unlawful”.. Brixton Prison Governor.B.R.

• The question then arises as to what the result ought to be if the court is satisfied that one or more of these “mixed motives” are improper.Mixed Motives / Purposes • Sometimes an authority may be motivated to exercise a power by two or more purposes. some of which are lawful and some unlawful. . the court may ask itself which was the dominant motive. • Where a decision-maker has been influenced by a number of motives.

on the facts.Improper Motives Purpose • However. it had not been proved that the Secretary was acting from other than lawful motives. . it was decided.

but they had statutory power to construct public convenience or toilet. • In Westminster Corporation v. the council had no power to construct subways. thereby establishing a subway as well.C. . 426. London and NorthWestern Railways [1905] A. They located a public convenience under a street and made it accessible from both sides of the street.Mixed Motives / Purposes • The general rule is that its action will be lawful provided that the permitted purpose is the true and dominant purpose behind the act.

.Mixed Motives / Purposes • The House of Lords held that the primary object of the council was the construction of the convenience with the requisite and proper means of approach. • In short the House of Lords held that the dominant motive was the provision of toilets and so the action was lawful.

223 . Wednesbury Corporation [1948] 1 K.Relevant and Irrelevant Considerations • An administrative authority which is vested with statutory functions is subject to judicial control on the ground of ultravires if in exercising its function it takes into account irrelevant considerations or. conversely omits to take into account relevant considerations. was spelled out most succinctly in the case of Associated Provincial Pictures House Ltd v.B. • This principle although it dates back much further.

• The Court of Appeal decided that it was in order for the authority to have taken into account. A local authority authorized the Plaintiffs to open on Sundays subject to the conditions that no children under 15 years of age should be admitted to Sunday performances. authorities to permit licensed places to be opened and used to be opened and used on Sundays. such factors as the physical and mental well-being and health of the children. . “subject to such conditions as the authorities think fit to impose”. as they had.Relevant and Irrelevant Considerations • The Sunday Entertainment Act.

M. said. • The central issue in the application of this principle is the determination of what factors are relevant and what factors are irrelevant in a particular case. on page 233-234.R. “The court is entitled to investigate the action of the local authority with a view to seeing whether it had taken into account matters which it ought not to take into account or conversely has refused to take into account matters which it ought to take into account”.Relevant and Irrelevant Considerations • Lord Green. .

R said in R. M.D 371 at 375: • “If people who have to exercise a public duty by excising their discretion take into account matters which the court considers not to be proper…. Pancras Vestry [1890] 24 Q.B. v. . Then in the eyes of the law they have not exercised their discretion”.• Ultimately it is for the courts to determine this issue: • As Lord Esther.St.

the courts will consider the policy of the legislation and determine from it the intention of the legislature. as sometimes may be the case. which is the more usual situation. • Even where the statute is silent in this regard.Relevant and Irrelevant Considerations • In exercising this function the courts get some guidance from the provisions of the relevant statutes especially where. . the statute enumerates a series of factors or matters to be considered by the authority.

C. Hopwood [1925] A.Relevant and Irrelevant Considerations • This wide power carried by the courts enable them to impose their own reasoning in the administration of particular statutes. the poplar Borough Council were empowered by statutes to pay their employees “such salaries and wages as they may think fit”. In an attempt to present themselves as benevolent employers. • This in Roberts V. the council set wages which were much higher than the general level of wages in the district at the time. .578.

• The council ought not to have allowed themselves to be misled by “some eccentric principles of socialistic philanthropy” .Relevant and Irrelevant Considerations • Their decision was disallowed by the auditor whose decision was upheld by the House of Lords. • Lord Atkinson considered that the council’s philanthropic purposes were not relevant to the exercise of their power.

& N. In rriving at this figure. . the valuer had considered other factors.the appellants owned three plots of land in the centre of Lusaka on which were some shops. 491. • The Respondents’ never assed the ratable value of the land at 115.Relevant and Irrelevant Considerations • In Farmers Co-operative Ltd V. offices and warehouses. his view formed from sales of land in the vicinity. Lusaka Municipal council [1959] R.760 pounds.

claiming that it should have been 74. . the prices obtained for other comparable land in the vicinity.570. • It was held that the valuer was entitled to take into account as a factor assisting him to form his opinion of the unimproved value of the land concerned.Relevant and Irrelevant Considerations • The Appellant lodged an objection to this valuation. a valuation court dismissed the objection. • The appellant then appealed to the high Court.

exceeds its powers (substantive ultra-vires). or otherwise abuses its powers can be said to have acted unreasonably. • That is to say an administrative authority which for example. or contravenes some procedural requirements (procedural ultra vires). .Unreasonableness • It is arguable that the element of reasonableness is inherent in all the other grounds of judicial control or review of administrative authority actions or decisions.

. It must act in good faith and it must act reasonably. The last proposition is involved in the second. It must keep within the limits of the authority committed to it.Unreasonableness • Lord Macnaighton in Westminster Corporation V.C 426 said: • “It is well settled that a public body invested with statutory powers…must take care not to exceed or abuse its powers. London and North Western Railways [1905] A. if not in the first”.

Unreasonableness • Professors hood Philips in O. Hood Philips constitutional & administrative. . P.601 stated: • “One aspect of acting reasonably is calling one’s attention to matters which one is bound to consider and excluding from considering matters which are irrelevant”.

Hopwood stated that: in Roberts V. He must act reasonably”. ascertain and follow the course which reason directs. He must. by the use of his reason. • “A person in whom is vested a discretion must exercise his discretion upon reasonable grounds….Unreasonableness • Further Lord Wrenbury. .

the court ought not to substitute its own conception of what is reasonable for that of the administrative authority. authority would have done that which is complained of. • The objective ought to be determine whether a “sensible “ admin. .Unreasonableness • In the ground of unreasonableness.

the issue was whether the Secretary of State for Education was entitled to give directions under the Education Act. Tameside Metropolitan Borough council [1977] A. . 1944 to a local authority in relation to the re-organisation of the education system in the authority’s area.Unreasonableness • In Secretary of State for Education & Science V. • It was argued on behalf of the secretary of state that she had acted within her powers because she was satisfied that the local authority had acted or was proposing to act “unreasonably”.C 1014.

To fall which this expression it must be conduct which no sensible authority… would have decided to adopt.” . ‘unreasonable’ as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art.Unreasonableness • In response Lord Diplock: • “In public law.

R. Dept of Trade [1977] 2 All E. the court of Appeal declared to be invalid an attempt by a minister to use his powers under the civil Aviation Act. 1971 (to give “guidance” to the civil Aviation Authority) to compel the Authority to revoke the license give earlier to the applicant. .Unreasonableness • In Laker airways V. 182.

G [1972] Z.111. A.R. Nkumbula challenged establishment of by the President of a commissioner of enquiry to inquire into and make recommendations on the form which the one-party system of government should take in Zambia.Unreasonableness • In Nkumbula V. which provides: • “(i)The President may issue a commission appointing one or more commissioners to inquire into any matter in which an inquiring would in the opinion of the President be for the public welfare.” . The commission was appointed under section 2 of the Inquiries Act.

or from improper motives.Unreasonableness • Nkumbula argued. that it could not possibly be for the public welfare to prepare to take away certain existing rights. or extraneous considerations. the political rights enjoyed in multi-party systems. and it has never been doubted that decision made under a power expressed in such terms can not be challenged unless it can be shown that the person vested with the power acted in bad faith. or under a view of the facts or the law which could not reasonably be entertained. that is. inter alia. • Baron J. said in the court of Appeal (page 211): • “The words ‘in the opinion of the President’ clearly make the matter for the subjective decision of the President.” .

it must be shown that to regard the inquiry called for by statutory instrument no.Unreasonableness • The Judge then related these principles to the case before him by saying: • “For this ground… to succeed therefore. 46 of 1972 as being for the public welfare was a view of the law which could not reasonably be entertained.” .

it was held that the President had acted within his powers. so that: • “If the interests of the society at large are regarded as sufficiently important to override the individual interests then the action in question must be held to be for the public welfare.Unreasonableness • It was decided that the issue whether that the issue whether a matter was for the public welfare or not was a matter of balance.” • Ultimately. .