QUESTION.

Government is liable for its actions as though it was a private person, in the
event that the aggrieved party seeks redress, they get a remedy.
With the aid of relevant authorities, discuss the authenticity of this assertion and
principles relating to it.

A government, with reference from the Black’s law (2004), can be defined as a
structure of principles and rules determining how a state or organization is regulated.
The legal right to proceed against the government was initially not available for citizens
since under common law. The underlying factor behind this was the assumption that
these legal suits against the government were not in the public interest since
government at all times endeavors to promote the public interest. This argument was
fronted in Attorney General V Silver Springs Hotel Ltd & Ors while denying granting
injunctions against the government; this position has since been overruled by the case
of Attorney General V Osotraco1
Government liability refers to any liability imposed by or in connection with any
environmental law or any other law. The government could not be sued, under contract
law and tort, under common law. This is because it was presumed that the King could
not do wrong, and could not be presented before the courts and submit to their
jurisdiction, because it is the crown that created these courts then. The only way
servants could seek redress against the crown for the grievances caused to them was by
way of Petition of right, where it could only be provided after seeking permission from
the crown.
The Crown Proceedings Act of 1947, upon being enacted, created the government as
a private body that can sue or be sued. This act developed the liability of the crown,
and gave an opportunity to individuals to have a right to claim against the crown.

A replica of the Crown Proceedings Act in Uganda is the Government Proceedings Act
Cap 77, which imposes liability on the government, and all its agents or workers, in
actions of contract and tort under section 2 and section 3 of the act. Therefore, any

1
[2005]UGCA 1
1
person has the right to sue government in the above claims as if it were a private
person.

Article 250(1) of the 1995 Constitution of the republic of Uganda provides that where
a person has a claim against the government, that claim may be enforced as a right by
proceedings taken against the government for that purpose. These proceedings, since
against the government, are to be instituted by the Attorney General who represents
the government in civil matters as per Article 119(4) (c), and his office is created by
Article 119(1) of the 1995 Constitution of the Republic of Uganda, as amended.

Section 2 of the Civil Procedure and Limitations (Miscellaneous Provisions) Act

Cap 72, provides that a person intending to sue government should serve it a
mandatory statutory notice of forty five days. However, this provision was over ruled by
the Court of Appeal in the case of Kabandize & 20 Ors v KCCA 2 , where the Attorney
General claimed that the applicants had submitted to him a statutory notice. This
therefore led to the Court’s holding that this provision was bad law as the 45 days were
a technicality as per Article 126 (e) of the 1995 constitution of Uganda as amended.
The Supreme Court in the same case agreed with the Court of Appeal, but stated that
failure to serve a statutory notice to the government would not avail the applicant any
costs.

The following are the grounds upon which the government can be held liable;

Government can be held liable under the law of contracts. Section 10(1) of the
Contract’s Act No.10 2010 defines a contract as an agreement made with the free
consent of parties with capacity to contract, for a lawful consideration and with a lawful
object, with the intention to be legally bound. Section 2 of the Government
proceedings Act Cap 77 provides power to any person who has a claim against the
government on any matter concerning contracts to apply to court to seek for remedy.
These contracts require each party to perform its obligations under the contract and in
case the government does not perform its obligation it can be sued, as best stipulated
in the case of Clear Channel Independent (U) Ltd V Public Procurement and
2
Civil appeal No. 28 of 2011
2
Disposal of Assets Authority3 the applicant was a business company mainly dealing
in Billboard advertising. The applicant submitted a bid to the Civil Aviation Authority
for the tender of the Management of Advertisement at Entebbe International Airport
following a request for bids by the said Civil Aviation Authority. It is the applicant’s case
that its bid was unjustly and unreasonably rejected by the said Civil Aviation Authority
and the tender was awarded to M/s Alliance Media Ltd. Hence, Yorokamu Bamwine
held that the review was not that of the Civil Aviation Authority but that of the
respondent and thus the rightful processes were not followed.

The government can also be held liable under torts. In the book, “The law of Torts
(Heuston & Buckley, 1996)”, a tort is defined as a civil wrong for which the remedy is a
common law action for unliquidated damages and which is not exclusively the breach of
a contract or the breach of a trust or other obligation. Section 3 and 4 of the
Government Proceeding Act cap 77 prescribe the ways how the government can be
held liable in the law of torts, for instance vicarious liability, employers liability and
occupier’s liability as stipulated below; Under vicarious liability, this occurs where the
servant or employee acting within his area of employment commits a tort in the course
of his daily activities, as provided for under Section 3(1) of the Government
Proceeding Act cap 77. Government is liable for the torts committed by the public
servants during the course of employment while in duty as long as the public servants
are acting within the scope of employment thus making the government and the public
servants severely liable. This fact was well laid out in the case of Piovano v A.G4, where
the court held that the test to be applied where a servant has committed a wrong is that
it must be the natural result of his carrying on his masters business or duties.

Government can be held liable in the breach of statutory duties that is; constitutional
and statutory duties. Section 3(2) of the Government Proceedings Act provides that
where a government is bound by a statutory duty which is binding also upon persons
other than government and its officers, then subject to this act. In addition, Section
3(3) of the Government Proceedings Act cap 77 stipulates that where any functions

3
[2009] UGHC 180
4
(1972) EA
3
are conferred or imposed upon an officer of the government, either by rule of the
common law or by enactment, and that officer commit a tort while performing those
functions, the liabilities of government in respect of the tort shall be as they would have
been if those functions had been conferred or imposed solely by virtue of instructions
lawfully given by the government. For instance, in the case of Centre for Health
Human Rights and Development & 3 Ors Vs A.G 5, court held that the government
was in breach of its duty in regard to ensuring maternal healthcare of mothers in
Uganda. Furthermore, in constitutional and presidential election petitions, the attorney
general is entitled to be served with a copy of the petition even when he is not a party to
the petition as a respondent. This provision is the subject of Rule 4 and 5 of the
Constitutional Court (Petitions and References) Rules, 2005 and Rule 5 and 6 of
the Presidential Elections (Election Petitions) Rules, 2001. Subsequent election
petitions like Hon Amama Mbabazi v Yoweri Kaguta Museveni & Ors have also
reiterated this principle.

However there are limitations to government’s liability in tort and contract. They
include; i) where under any law, the responsible officer of government is absolved from
liability for an omission, ii) act of state doctrine as a defense, iii) torts committed by
members of armed forces, iv) judicial immunity. Under judicial immunity, where the
government cannot be liable for actions done by judicial officers in the discharge or
purported discharge of judicial duties and this is provided for under Section 3(5) of
the government proceeding act cap 77. In the case of AG v Oluoch6 where the
proceedings were instituted against the Attorney General for the torts of the magistrate
and the police officer, and court held that no suit lies against government in respect of
the acts done in the discharge of judicial functions. Section 4 of the Land reform
(miscellaneous provisions) Act Cap 79 provides that government shall not be liable in
tort for the death or injury of an army officer by another officer. Time limit of 2 years for
actions of tort and 3 years for contract as per section 3(supra) is also another

5
[2020] UGCC 12
6
[1972] EA 392

4
exception to liability against government. In addition, there are exceptions contained in
Civil Procedure and Limitation Act (miscellaneous provision Act).

1) Statutory notice. Section 2 of the 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.

2) Suits against the government are brought against the Attorney General under
Article 119 of the Constitution 1995 Constitution of the republic of Uganda.
Section 10 of the Government Proceeding Act provides that Civil proceedings by or
against the Government shall be instituted by or against the Attorney General. Section
11(supra) 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 Attorney General may be brought in any court which has jurisdiction
over the matter in question. The Attorney General may however, apply to have the suit
transferred to high court, if it  is filed in lower courts and Attorney General 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 Government Proceeding
Act.

4) Limitation periods relate to periods in which an action must be brought against a

party. Under Section 2 of the 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.

5
Suffice to say, Subject to Principles of democracy and good governance it is expedient
that the government is now subjective to proceedings as discussed above and this has
assisted in a way of checks and balances, bringing the government to book for some of
its mistakes and hold it accountable in various matters.
However when the government is held liable, the aggrieved party can be rewarded with
remedies as explained herein; Section 14(1) of the government proceedings act
provides an authority for the government to provide an appropriate relief to private
persons, if they win a suit against the government.

Damages; These are a sum of money paid by the defendant to the claimant once
liability is established, in compensation for the harm suffered by the claimant, as per
the book Unlocking Contract Law (Turner, 2013 ). This was expounded in the case of
Akech v A.G7 where court held that the claimant be awarded UGX 90 million as the
compensation of the unlawful deprivation of the life of the plaintiff. There are however
some remedies that cannot be awarded to the aggrieved party for example injunctions
and specific performance;

An injunction is a court order commanding or preventing an act 8. There are three

types of injunctions for instance i) prohibitory injunction that seeks to restrain any
action found to be contrary to the law, ii) mandatory injunction that commands a
person to act according to the law where the applicant has a private right that arises
out of failure to perform a public duty and iii) an interlocutory injunction, one that
intends to preserve the status quo between the parties until the issue can be tried fully.
Section 14 of the government proceedings act cap 77 provides that the order of
injunction cannot be issued against the government, as seen in the case of Rwanyarare
& Ors v AG9 where court held that there is no sound reason why the government
should be given preferential treatment at the expense of the ordinary citizen and that

7
Civil suit 2018/618

8
Black’s Law Dictionary 8th Edition 2004 Pg 2296
9
(2003) 2 EA 664

6
section 14 of the government proceedings act should be construed in conformity with
Article 274(1) of the 1995 constitution as amended.
Specific performance refers to an equitable remedy that lies within the court’s
discretion to award whenever the common law remedy available is insufficient, as
expounded in the Black’s Law Dictionary 8th edition 2004 on page 4379.

Bibliography
Garner, B. A. (2004). Black’s Law Dictionary Dictionary 8th edition. In B. A.
Garner, Black’s Law Dictionarydictionary 8th edition (p. 2043). Toronto, Canada:
West (Thomson Reuters).

Heuston, R. F., & Buckley, R. (1996). The Law of Torts 21st edition. London, UK:
Sweet & Maxwell Ltd.

Turner, C. (2013 ). Unlocking Contract Law. In C. Turner, by 4th edition (p. 387).
Oxfordshire, England, UK: Routledge.