Administrative law questions and answers2


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Administrative law questions and answers2

  1. 1. 1. Discuss the Judicial RemediesApproach:Define judicial remediesIdentify and discuss the judicial remediesElements and Applications of Judicial remediesSuggested AnswerJudicial remedies are means which a court of law in exercising of enforcement of right, imposes a penaltyor makes an order in the ordinary proceeding of a court. Where an application for judicial review issuccessful the following remedies are available.1. Prerogative OrdersThe Judicature Act part IV provides for Judicial Remedies.S. 36. Prerogative orders, JA Cap 13(mandamus, prohibition and certiorari):In Lex Uganda Advocates & Solicitors v. AG, held that prerogative orders are remedies for the exercise ofpower by those in public offices, and they are available to give relief where a private person is challengingthe decision or action of a public authority or public body or anyone actibng in the exercise of a publicduty.S.36 (1) JA Cap 13 provides that the High Court may make an order, as the case may be, of—(i) mandamus (Mandatory Order)- requiring any act to be done: is an order from the High Courtcommanding a public authority or official to perform a public duty. In R V Barker (1762) 3 Burr 1265,the purposes was to prevent disorder from the failure of justice.A mandatory order compels public authorities to fulfill their duties. Whereas quashing andprohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. Amandatory order is similar to a mandatory injunction (below) as they are orders from the courtrequiring an act to be performed. Failure to comply is punishable as a contempt of court. Examples ofwhere a mandatory order might be appropriate include: compelling an authority to assess a disabledperson’s needs, to approve building plans, or to improve conditions of imprisonment. A mandatoryorder may be made in conjunction with a quashing order, for example, where a local authority’sdecision is quashed because the decision was made outside its powers, the court may simultaneouslyorder the local authority to remake the decision within the scope of its powers.(ii) Prohibition (prohibiting order), prohibiting any proceedings or matter: Prohibition is an order issuedprimarily to prevent an inferior court or tribunal from exceeding its jurisdiction, or acting contrary tothe rules of natural justice. R V Electricity Commissioner, anybody having a legal authority and actsbeyond their authority, are subject to the controlling jurisdiction of the King.A prohibiting order is similar to a quashing order in that it prevents a tribunal or authority fromacting beyond the scope of its powers. The key difference is that a prohibiting order actsprospectively by telling an authority not to do something in contemplation. Examples of whereprohibiting orders may be appropriate include stopping the implementation of a decision in breach ofnatural justice, or to prevent a local authority licensing indecent films, or to prevent the deportationof someone whose immigration status has been wrongly decided.(iii) Certiorari(Quashing Order), removing any proceedings or matter to the High Court: Certiorari is anorder quashing decisions by inferior courts, tribunals and public authorities where there has been anexcess of jurisdiction or an ultra vires decision; a breach of natural justice; or an error of law. By
  2. 2. Baker Kosmac-OkwirIslamic University in Uganda Page 1 LLB II Administrative Law -Semester I 2011/2012setting aside a defective decision, certiorari prepares the way for a fresh decision to be taken. InKikonsa Butema Farms Ltd V. IGG- was held that must be shown that despondent acted beyond hisjurisdiction.A quashing order nullifies a decision which has been made by a public body. The effect is to make thedecision completely invalid. Such an order is usually made where an authority has acted outside thescope of its powers (ultra vires). The most common order made in successful judicial reviewproceedings is a quashing order. If the court makes a quashing order it can send the case back to theoriginal decision maker directing it to remake the decision in light of the court’s findings. Or if there isno purpose in sending the case back, it may take the decision itself.2. Ordinary Orders(i) An injunction may be claimed against a public authority or official, to restrain unlawful actswhich are threatened or are being committed. It is an equitable remedy in the form of a courtorder, whereby party is required to do or refrain from doing. In Geila V Sassman Brown & Co,held that for an interim injunction to be granted, it must be shown that the applicant has a primafacie case, with a probability of success.An injunction is an order made by the court to stop a public body from acting in an unlawful way.Less commonly, an injunction can be mandatory, that is, it compels a public body to dosomething. Where there is an imminent risk of damage or loss, and other remedies would not besufficient, the court may grant an interim injunction to protect the position of the parties beforegoing to a full hearing. If an interim injunction is granted pending final hearing, it is possible thatthe side which benefits from the injunction will be asked to give an undertaking that if the otherside is successful at the final hearing, the party which had the benefit of the interim protectioncan compensate the other party for its losses. This does not happen where the claimant is legallyaided.(ii) A declaratory judgment may be obtained which merely declares the legal relationship of theparties and is not accompanied by any sanction or means of enforcement. The authority of acourts ruling on law is such that a declaratory judgment will normally restrain both thegovernment and public authorities from illegal conduct. In Opoloot V AG, court refused to grantthe applicant on grounds that it would embarrass and prejudice they security of the state.A declaration is a judgment by the Court which clarifies the respective rights and obligations ofthe parties to the proceedings, without actually making any order. Unlike the remedies ofquashing, prohibiting and mandatory order the court is not telling the parties to do anything in adeclaratory judgment. For example, if the court declared that a proposed rule by a local authoritywas unlawful, a declaration would resolve the legal position of the parties in the proceedings.Subsequently, if the authority were to proceed ignoring the declaration, the applicant whoobtained the declaration would not have to comply with the unlawful rule and the quashing,prohibiting and mandatory orders would be available.(iii) Damages, the court may award damages if these have been sought by the applicant and thecourt is satisfied that damages could have been obtained by an action brought for the purpose.Damages are available as a remedy in judicial review in limited circumstances. Compensation isnot available merely because a public authority has acted unlawfully.
  3. 3. Baker Kosmac-OkwirIslamic University in Uganda Page 2 LLB II Administrative Law -Semester I 2011/2012The discretionary nature of the remedies outlined above means that even if a court finds a publicbody has acted wrongly, it does not have to grant any remedy. Examples of where discretion willbe exercised against an applicant may include where the applicant’s own conduct has beenunmeritorious or unreasonable, for example where the applicant has unreasonably delayed inapplying for judicial review, where the applicant has not acted in good faith, where a remedywould impede the an authority’s ability to deliver fair administration, or where the judgeconsiders that an alternative remedy could have been pursued.(iv) Habeas Corpus.-means produce the body is remedy provided for illegal detention. Section 34 ofJA Cap 13, provides for High Court may at any time, where a person is deprived of his or personalliberty otherwise than execution of a lawful sentence, may award a writ of habeas corpusdirected to the person in whose authority custody the person deprived of liberty. In Re TwaahaWanande HC, court held that in any application for a writ of habeas corpus, the applicant mustshow that the arrest and detention were unlawful in the first place.(v) JUDICIAL REVIEWJudicial review is provided for s.36 (10) of JA Cap 13. The power to review lies with the HighCourt. The Act limits the time for an application for review to Three months from the date whenthe ground arose unless court has good reason to extend time.Grounds for Judicial ReviewJudicial review is different from an appeal. The distinction is that an appeal is concerned with themerits of the decision under appeal while judicial review is concerned only with the legality of thedecision or act under review. In the GCHQ Case (1985), Lord Diplock classified the grounds onwhich administrative action is subject to judicial control under three heads, namely, illegality,irrationality, and procedural impropriety.(A) ILLEGALITYIllegality as a ground for judicial review means that the decision-maker must understandcorrectly the law that regulates his decision-making power and must give effect to it. Whether hehas or not is a question to be decided in the event of dispute by judges. This would mean thatwhen a power vested in a decision-maker is exceeded, acts done in excess of the power areinvalid as being ultra vires (substantive ultra vires).An example would be where a local council, whose power is derived from statute, acts outsidethe scope of that authority. Bromley Council v Greater London Council (1983).Government Ministers have also sometimes acted outside their authority. R v Home Secretary,ex parte Fire Brigades Union (1995).(B) IRRATIONALITYBy irrationality as a ground for judicial review, Lord Diplock in the GCHQ Case (1985) meant whatis referred to as Wednesbury unreasonableness.In Associated Provincial Picture Houses Ltd vWednesbury Corp (1948) the Court of Appeal held that a court could interfere with a decisionthat was so unreasonable that no reasonable authority could ever have come to it.Lord Diplock in the GCHQ Case said that this “applies to a decision which is so outrageous in itsdefiance of logic or of accepted moral standards that no sensible person who had applied hismind to the question to be decided could have arrived at it.”
  4. 4. Baker Kosmac-OkwirIslamic University in Uganda Page 3 LLB II Administrative Law -Semester I 2011/2012Case examples include: Strictland v Hayes Borough Council (1896), R v Derbyshire CountyCouncil, ex parte The Times (1990)This ground has been used to prevent powers from being abused by, for example, exercising adiscretion for an improper purpose or without taking into account all relevant considerations.(C) PROCEDURAL IMPROPRIETYProcedural impropriety as a ground for judicial review covers the failure by the decision-maker toobserve procedural rules that are expressly laid down in the legislation by which its jurisdiction isconferred, or a failure to observe basic rules of natural justice, or a failure to act with proceduralfairness (procedural ultra vires).DOCTRINE OF NATURAL JUSTICEThe Main rules of Natural Justice(i) nemo judex in causa sua potest (no man can be a judge in his own cause), which will bebreached where the decision-maker has a direct financial interest or has acted both asprosecutor and judge, or where there is a real danger of bias. R v Altringham Justices ex partePennington (1975)(ii) audi alteram partem (hear the other side), which requires prior notice to be given of a decisionadverse to individual interests together with an opportunity to make representations. Ridge vBaldwin (1964).