Suits against the government.

Private law remedies are obtained from courts by way of ordinary civil suits, not by way of  judicial review proceedings as is the case which prerogative orders or remedies.

Hence , the position of the Government in relation to civil suits need to be considered separately because suits against the government as a defendant are subject to certain conditions which do not apply to suits against other ordinary defendant.

Suits against the government are governed by the Government Proceedings act, 1967 as amended. the act is molded along the English Crown’s Proceedings act, 1967, under which the right to issue sue the crown was firstly introduced in England. Before the coming of the Act, the crown could not be sued {i.e. the King / Queen is always right). The immunity of the crown was based on some feudal believes that ‘the King could not do any wrong. Hence the intention of the Act was to get rid of the immunity of the government in civil cases and to enable it to be sued like any private individual though with some privileges accorded to it/ the government.

The intention however was not realized immediately after the law was enacted as it is effective date was delayed until 1974 after amending s.6 thereof which required the consent of the minister  before proceeding with any suit against the government.

This was seen in the case of  PatrickMatiku vs. Sebabile& Others HC TBR REGISTRY CIVIL CAUSE NO 03 1982. In order to avoid the consent requirement, the plaintiff instituted the case without joining the government as a co-defendant, the government asked to be joined as a co defendant and after being joined the government successful prevented the case from proceeding by pleading ‘ lack of the Minister consent to sue the government”.

Read. The case lead to amendment of s.6

SOME PRIVILEGES OF THE GOVERNMENT AS A DEFENDANT;

The consent requirement has been replaced with a 90 days’ notice which must be served to the government before suing it.

OBJECTIVES OF THE NOTICE;-

The object of the notice is: to enable the government to consider and settle claims against it whenever it is appropriate outside the courts and serve the government from unnecessary embarrassment and damaging its reputation before international community.

i. The notice is served to the particular department against which the suit is to be instituted and a copy to the notice has to be served to the AG.

ii. Suits against the government can only be instituted in the HC.

iii. The Government enjoys some protections with regard to limitation of time. In that no suit can be instituted against the government on a cause of action which is more than three years old. Unless could apply for extension of time to a specified minister).

However the government on this part is not bound by that limitation rule, instead it is governed by the less provisions of, The Laws of Limitation Act, 1971. Apart from that there are some remedies or reliefs which cannot be obtained against the government. According to s. 11(1) (a) of the GPA 1967: “The court shall not grant an injunction or make an order for specific performance against the government for the recovery of land or the delivery of any property”.

In all cases in which such orders would be awarded, if the proceedings were against a private person, the court may only make orders of declaration in lieu thereof. i.e. The court may only make orders declaring the rights of the party or in case of land or property declaring that, the plaintiff is entitled to the land or property or to the possession thereof as against the government.

This means that, in the case of a breach of contract by the Government which would justify an order of a specific performance the claimant cannot order the specific performance against the government.

NB: the logic of the privileges and protection in favor of the government is simply that, unlike a private individual, the government has the responsibility of looking after and taking care of the wider interest of the society @ large.

Usually, it wills in the furtherance of those wider interests that, the government will have conducted itself in a way that gives rise to the cause of action against it.

In other note it should be born in mind however that the exclusions made the Government proceedings Act, 1967. Do not affect powers of the HC to issue interim or interlocutory injunctions pending determinations of the main proceedings in the application for the prerogative orders of certiorari and prohibition.

It should only be noted that: the GPA, 1967 applies only to the proceedings against the government i.e. the central government and all its departments.

Local Government Authorities and all other public authorities are not covered by the Government Proceedings Act, 1967.