Government Proceedings in Tanzania and England

1.0 INTRODUCTION

1.1 The History of Government Proceedings: in England

Originally at common law, the government/state was protected against civil liabilities on the basis of the latin Maxim Rex Non Potest Peccare  that is the king can do no wrong. This was sometimes knowen as the doctrine of sovereign immunity which arose form the notion that the English Monarchy was sovereign and could not be liable for damage to its subject .The doctrine originated in the case of Russel v. Men of Devo[1], where it was held that unincorporated town could not be liable for damage caused by a defective bridge.

The only claim which could be brought against the government was by way of a writ known as Petition of rights limited to contract and some property actions. However, democratic struggles in 1920’s demanded among other things a need to equate the government with other persons equally before the court of law. Changes were seen in England through the crown proceedings Act, 1947 which abolished the procedure of petition of rights and made it possible for the government to be sued in all civil wrongs.

1.2: The History of Government Proceedings in Tanzania.

Although in England the Crown proceedings Act, 1947 was passed to enable the government to be sued just like other private persons in court of law, yet in British colonies, including Tanganyika, it was not easy for one to sue the Government. After the independence, the law governing suits by or against the Government was enacted from the one which was used in colonial period.

However, in 1967, the Government sent a bill to the parliament led to the enactment of the Government Proceedings Act[2] which did not come into effect until 1974 following the amendments made to that law through Act No 40 of 1974. The law stated that in all suits against the Government, the proceedings shall be instituted against the Attorney General and a copy of the plaint shall be sent to the minister, Department or officer alleged to have committed such wrong and shall be instituted in the High Court by filing it in the Registry to which the claim arose.

2.0        MAIN BODY

The old common law maxim that the king can do no wrong is neither part of the contemporary common law system neither is it our part in our system in Tanzania. This was emphasized by Honorable Samatta. J K (as he then was) in Mwalimu Paul John Mhozya v. the Attorney General[3]  where he said:

“The notion, apparently harboured by some people in this country, that the president of the United Republic is above the law is subversive of the constitution and the laws. All Government leaders including the president, are like the humblest citizen, behind to comply with the laws of the country. The maxim the king can do no wrong has no place in our law even if the word ‘president is substituted for the word king’ Every one and every institution or organization in this country is enjoined to pay respect to the principle of supremacy of the law [Emphasis is ours]

Therefore in Tanzania, the Government, just like other individual person can be sued in a court of law in actions like torts, contract, detinue etc

2.1        Whether the liability Lie to the Government, Volunteer or Community Organization.

Section 3 of the Government Proceedings Act, 1967 provides that the Government shall be subject to all proceedings those liabilities in contract, quasi-contract, detinue, tort and in other respect to which it would be subject if it were a private person of full age and capacity and any claim arising there from, may be enforced against the Government in accordance with the provisions of the Act.

According to the scenario the nature of agreement which can be seen is that of Quasi Contract. This comprehends an obligation not arising by, but similar to contract. The consent of the person behind is not required and it may be broadly said that the classes of claim recognized as quasi-contractual have little in common other than that they extend to “liability not exclusively referable to any others head of law, imposed upon a particular person to pay money to another particular person on the ground of unjust benefit”

It is from the above observations where the liability shall lie to the Government on the basis of Quasi-contractual liability and not the volunteer or community organization due to the fact that the service rendered by Mr. Kagugu, a Canadian citizen who belongs to peace corps, was done for the benefit of the Government and for its use and enjoyment. Thus, it is the Government that will be liable under this circumstances.

The liability to the government arise due to the fact that, it is the government itself which give the license to those volunteers who come to work in the country. The consent is given by the Government for the volunteers to work in the country and without an assent by the Government then those volunteers will not be permitted to work in the country.Thus, anything arise out of the duty performed by those volunteers, it is the Government that will be liable in case there is any breach of the duty.

In order to protect innocent parties, courts have held the Government liable to compensate the other contracting party on the basis of quasi-contractual liability. Fore example, if the Government derives any benefit under any such agreement it may be held liable to compensate the other contracting party under section 70 of the law of contract Act[4] On the basis of a Quasi- Contractual liability to the extent of the benefit received

The reason is that it is not just and equitable for the government to retain any benefits it has received under an agreement which does not bind it. Section 70 provides that , “where a person lawfully does anything for another person, or delivers anything to have, not intending to do so gratisitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore the thing so done or delivered”.

If section 70 is here to be inapplicable in regard to such dealing by Government Officers, it would lead to extremely unreasonable consequences and may even hamper the day to day working of the government. Like ordinary citizens, even the government is subject to the provisions of section 70.

In the case of Mulamchand v. Madhaya Pradesh[5] the supreme court, stated that “if the money is deposited and goods are supplied or if services are rendered in terms of the void contract, the provisions of section 70 of the law of contract Act, may be applicable.

In Mulanmchad’s case, the court extracted the following observation of Lord Denning in Nelson v. Larhold[6] “it is no longer appropriate to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect…….Remedies now depend on the substance of the right, not on whether they can be fitted into a frame work.The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires”

The main point which make the Government liable is that the government had received the benefit of the work done by Mr. kagugu who was a volunteer form the peace corps. Thus, any kind of compensation allowed to the plaintiff for work actually done or service rendered on a reasonable basis and not the basis of the terms of contract like that rendered by Mr. Kagugu will be paid by the Government since the liability lie to it (the government) due to the fact that it (government) has benefited from the service voluntarily rendered by Mr. Kagugu.

The law is that, if the goods delivered are accepted or the work done is voluntarily enjoyed, then the liability to pay compensation for the enjoyment of the said goods or services arises. This liability will automatically lie to the government since it is the one that has enjoyed and benefited from the services rendered by Mr. kagugu.

In the case of Pannalal v. Deputy Commissioner[7] the supreme court held the Government liable to pay under section 70 of the law of contract Act as the state  had received the benefit of the work done by the appellant.

It can be observed that, the law doesn’t consider whether the act done by the volunteer (Mr. Kagugu) was recklessly done or not. Whether the act was recklessly done or not, but the liability will still lie to the government.

In the same way, if under any invalid contract with the government, the contracting party has obtained any benefit from the government, he can be sued by the government for the dues under section 70, of the law of contract Act. If it happened that the contracting party under any invalid contract is the one which has benefited by the government then the government can sue for compensation.

It can be observed from the scenarion that, there is no any place where it is shown that either the volunteer or community obtained any benefit from the Government, therefore, neither the volunteer nor the community organization can be sued by the government for reckless act done by a volunteer who belongs to the peace corps.

3.0  CONCLUSION

To sum up, in cases falling under section 70, of the law of contract Act, the person doing something for another or delivering something to another cannot sue for specific performance of the contract nor ask for damages for the breach of contract for the simple reason that no valid contract exists between the parties. All that section 70 provides is that if the goods delivered are accepted or the work done is voluntarily enjoyed, then the liability to pay compensation for the enjoyment of the said goods or acceptance of the said work arises

4.O BIBLIOGRAPHY

Statute

Tanzania Government of, Law of Contract Act [Cap 345 R.E 2002], Government Printers, Dar es Salaam.

Tanzania Government of, Government Proceedings Act 1967 [Act No 16 of 1967], Government Printers, Dar es Salaam.

Cases

Mulamchand v. Madhya Pradesh, A.I.R 1961 S.C 1218

Mwalimu Paul John Muhozya v. The Attorney General, High Court of Tanzania at Dar es Salaam, Civil Case No 206 of 1993 (unreported)

Nelson v. Larholt, (1984) 1 KB 339.

Pannalal v. Deputy Commissioner A.I.R (1973) S.C 1174

Russel v. Men of Devo (1778) 2 T.R 667

Books

Jain, M.P. & S.N, Jain (2005) , Principles of Administrative law, 4^th Ed, Wadhwa and Company Nagpur, New Delhi

Peter C.M (1997), Human Right in Tanzania, Koppe: Koln

Takwani, C.K, (2007), Lecture on Administrative law, 3^rd Ed, Eastern Book Co, Lucknow.  

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[1] (1778) 2 TLR 667

[2] [Act No 16 of 1967]

[3]High Court of Tanzania at Dar es Salaam, Civil Case No 206 of 1993 (unreported)

[4] [Cap 345 R.E 2002]

[5] A.I.R 1961 S.C 12 18

[6] (1984) 1 KB 339

[7] A.I.R  (1973) S.C 1174 – No 7