Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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
BAD FAITH
Professor de smith defined bad faith (de Smith,
The abuse of statutory power P.237) as:
The concept of bad faith eludes precise
definition, but.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. A power is exercised
maliciously if its repository is motivated by
personal animosity towards those who are
directly affected by its exercise.
BAD FAITH
Bad faith presents some difficulties such as its
similarity with other principles such as improper
motives and irrelevant considerations.
Also bad faith is a difficult ground to advance
as an independent ground for judicial control
or in judicial review.
In Chilufya v. City council of Kitwe [1967] Z.R.115,
Maloon, A.G.J. quashed a decision of a local
authority canceling the trading license of the
applicant.
The court found that in reaching the decision
the council had been influenced by political
considerations which were irrelevant.
BAD FAITH
Mallon, AG.J. said on page 127: Its (the
Councils)
decision
was
materially
influenced by political considerations and
was therefore a decision taken in bad
faith.
In Demotrades v. Glasgow Corporation [1951]
1 All E.R.457, Page 460, the court stated that
bad faith should be expressly pleaded
and supported by specific allegations of
facts.
All in all, bad faith is a difficult ground to
rely on to the exclusion of other grounds.
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 applicator of this principle was well
illustrated in the then Southern Rhodesia Town
and country planning Tribunal judgment in the
case of Banfiled v. The Salisbury North-East
Town Planning Authority [1957] R&N.211.
Improper Motives
Purpose
The Planning Authority approved the appellants
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.
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, A.P held that Powers given to a body
for one purpose cannot be used to bring about
another ulterior result, however laudable the
intentions of the body concerned may have
been.
Improper Motives
Purpose
Also in Municipal Council of Sydney v. Campbell
[1925] A.C. 338, at P. 343, the Judicial committee
of the privy council stated that a body such
as the municipal Council of Sydney,
authorized to take land compulsory for
specific purpose, will not be permitted to
exercised its powers for different
purposes.
Like bad faith, the ground of improper motives
cannot be successfully relied upon unless
it is supported by allegations of fact.
Improper Motives
Purpose
But then it is not easy to prove the motives
of an act, especially where as is often the
case, authority at issue does not disclose
the object it aims to achieve by a
particular act or decision.
Consequently it is common for courts because
of the elusiveness of the facts, to arrive at
conclusions which appear to vitiate or
reduce or destroy the effectiveness of
this principle as a ground for checking
administrative powers.
Improper Motives
Purpose
In R.V. Brixton Prison Governor, ex parte Soblen
[ 1963] 2 Q.B. 243 , 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.
Lord Denning, M.R., agreed that Ifthe
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.
Mixed Motives /
Purposes
Sometimes an authority may be
motivated to exercise a power by two or
more purposes.
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.
Where a decision-maker has been
influenced by a number of motives, some
of which are lawful and some unlawful,
the court may ask itself which was the
dominant motive.
Improper Motives
Purpose
However, on the facts, it was
decided, it had not been proved
that the Secretary was acting
from other than lawful motives.
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.
In Westminster Corporation v. London and NorthWestern Railways [1905] A.C. 426, the council
had no power to construct subways, but they had
statutory power to construct public convenience
or toilet. They located a public convenience under
a street and made it accessible from both sides of
the street, thereby establishing a subway as well.
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.
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.
That is to say an administrative authority
which for example, exceeds its powers
(substantive ultra-vires), or contravenes
some procedural requirements (procedural
ultra vires), or otherwise abuses its powers
can be said to have acted unreasonably.
Unreasonableness
Lord Macnaighton in Westminster Corporation
V. London and North Western Railways [1905]
A.C 426 said:
It is well settled that a public body
invested with statutory powersmust
take care not to exceed or abuse its
powers. It must keep within the limits of
the authority committed to it. It must act
in good faith and it must act reasonably.
The last proposition is involved in the
second, 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 ones attention to matters
which one is bound to consider and
excluding from considering matters
which are irrelevant.
Unreasonableness
Further Lord Wrenbury,
Hopwood stated that:
in
Roberts
V.
Unreasonableness
In the ground of unreasonableness, the
court ought not to substitute its own
conception of what is reasonable for
that of the administrative authority.
The
objective
ought
to
be
determine whether a sensible
admin. authority would have done
that which is complained of.
Unreasonableness
In Secretary of State for Education & Science V.
Tameside Metropolitan Borough council [1977]
A.C 1014, the issue was whether the Secretary
of State for Education was entitled to give
directions under the Education Act, 1944 to a
local authority in relation to the re-organisation
of the education system in the authoritys area.
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.
Unreasonableness
In response Lord Diplock:
In public law, 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. To fall which this expression it
must be conduct which no sensible
authority would have decided to
adopt.
Unreasonableness
In Laker airways V. Dept of Trade
[1977] 2 All E.R. 182, 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 Nkumbula V. A.G [1972] Z.R.111, 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. The
commission was appointed under section 2 of the
Inquiries Act, 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.
Unreasonableness
Nkumbula argued, inter alia, that it could not possibly be
for the public welfare to prepare to take away certain
existing rights, that is, the political rights enjoyed in
multi-party systems.
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, 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 from improper motives, or extraneous
considerations, or under a view of the facts or the
law which could not reasonably be entertained.
Unreasonableness
The Judge then related these principles
to the case before him by saying:
For this ground to succeed
therefore, it must be shown that to
regard the inquiry called for by
statutory instrument no. 46 of 1972
as being for the public welfare was
a view of the law which could not
reasonably be entertained.
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, 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.
Ultimately, it was held that the President
had acted within his powers.