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
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
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
“The notion, apparently harboured by
some people in this country, that the president of the United Republic
Therefore in Tanzania
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
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
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, 4th
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, 3rd
Ed, Eastern Book Co, Lucknow
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