IGG can neither sue nor be sued
Mar 24, 2004
This is an application by Notice of Motion for an order that the Inspector General of Government(IGG), be joined as a second respondent in a Civil Appeal between Major Kakooza Mutale versus the Attorney General.
Major Roland Kakooza Mutale: Appellant/Respondent
Attorney General: Respondent/Respondent
Inspector General of Government: Applicant
Before the honourable Justice Bamwine
Excerpts of the ruling:-
This is an application by Notice of Motion for an order that the Inspector General of Government(IGG), be joined as a second respondent in a Civil Appeal between Major Kakooza Mutale versus the Attorney General.
Major Mutale was a presidential advisor till August 2003 when he was relieved of his duties on the basis of a recommendation to the President by the IGG.
The appeal is against the Attorney General as legal representative of government.
Since the appeal was filed it has not been heard to completion because the IGG felt that the attorney general’s chambers was not doing its very best hence the IGG’s application to be joined as a second respondent. The application was opposed.
Capacity to sue
It is contended by the appellant/respondent that capacity to sue and/or be sued is conferred by statute. Since there is no statute conferring any such power on the IGG, he cannot sue or be sued and therefore cannot even be made a party to a case. In reply, counsel for the IGG, Ms Elizabeth Musoke, argued that it is a known fact that under Administrative law, public authorities such as the IGG have always been joined as defendants to court actions.
She argues further that the IGG is unique and that in the discharge of his duties under the Constitution, the IGG has been sued several times in which actions the IGG either represented himself or carried a joint representation with the Attorney General.
It is significant that in all these cases, the issue herein, the IGG’s capacity to sue or be sued, has apparently never been raised for Court’s determination. Any argument on capacity to sue indirectly hinges on who, as a person, can sue.
From my reading of Act 5 of 2002 the person of the IGG has been granted immunity from tortuous liability. The IGG himself cannot be compelled to court as a party or witness. Nothing is said about the Inspectorate.
I note that some government bodies can sue or be sued. They include The Administrator General, NEMA, National Council for Children, NDA among others. It is significant to note that parliament creates these bodies as bodies corporate with perpetual succession and a common seal with power to sue or be sued in their corporate names. It is not the duty of this court to question Parliament’s decision not to grant the Inspectorate Corporate status.
It would appear that once the Inspectorate steps on someone’s toes the remedy cannot be in suing the individual tortfeasor.
The remedy lies in suing someone else; it becomes a claim against the government. It is a well founded principle of law that statutes must state exactly what they mean and want achieved.
Construing the law in force, Parliament intended to give absolute immunity to the IGG and his staff, such as MPs and judicial officers.
If no proceedings can lie against the IGG, and if no officer or person serving in the Inspectorate can be compelled to give evidence before any court or tribunal in respect of anything coming to his knowledge by virtue of his office, then it follows that he cannot sue as well in that official capacity.
I hold as I must that no suit can be brought against the IGG and as such he is not a person who can be joined as a defendant, except in his individual capacity after his statutory immunity has been lifted.
Counsel for the applicant argues that the IGG has capacity by virtue of the fact that several proceedings have been brought against him. I would agree with counsel for the appellant that the existence of a legal power cannot be proved by practice. It must be conferred by statute.
Generally speaking the Civil Procedure Rules give court wide powers to strike out or add parties to suits. However, such an addition cannot be for the sake of it.
There must be a compelling legal reason to do so. The principles under which such an application can be allowed are fairly well known.
For the reasons stated, I disallow the application to add the second respondent. I however exercise the discretion of this Court to allow the parties to refine their pleadings and file final submissions reflecting the merits of the appeal within one month from the date of this order and thereafter the matter be put before me on April 14, 2004 for final submissions or directions.
The issue of lack of capacity to sue was raised by the attorney general and supported by the appellant. It is clear that the disagreement between the applicant and his counsel will financially disadvantage the appellant. Considering the above I would decree the costs of this application to the appellant and order that they be paid by the Attorney General.
Yorokamu Bamwine
March 5, 2004
Karugire and Kibeedi for first respondent.
Rwakoojo for second respondent.
Applicant present
Attorney General: Respondent/Respondent
Inspector General of Government: Applicant
Before the honourable Justice Bamwine
Excerpts of the ruling:-
This is an application by Notice of Motion for an order that the Inspector General of Government(IGG), be joined as a second respondent in a Civil Appeal between Major Kakooza Mutale versus the Attorney General.
Major Mutale was a presidential advisor till August 2003 when he was relieved of his duties on the basis of a recommendation to the President by the IGG.
The appeal is against the Attorney General as legal representative of government.
Since the appeal was filed it has not been heard to completion because the IGG felt that the attorney general’s chambers was not doing its very best hence the IGG’s application to be joined as a second respondent. The application was opposed.
Capacity to sue
It is contended by the appellant/respondent that capacity to sue and/or be sued is conferred by statute. Since there is no statute conferring any such power on the IGG, he cannot sue or be sued and therefore cannot even be made a party to a case. In reply, counsel for the IGG, Ms Elizabeth Musoke, argued that it is a known fact that under Administrative law, public authorities such as the IGG have always been joined as defendants to court actions.
She argues further that the IGG is unique and that in the discharge of his duties under the Constitution, the IGG has been sued several times in which actions the IGG either represented himself or carried a joint representation with the Attorney General.
It is significant that in all these cases, the issue herein, the IGG’s capacity to sue or be sued, has apparently never been raised for Court’s determination. Any argument on capacity to sue indirectly hinges on who, as a person, can sue.
From my reading of Act 5 of 2002 the person of the IGG has been granted immunity from tortuous liability. The IGG himself cannot be compelled to court as a party or witness. Nothing is said about the Inspectorate.
I note that some government bodies can sue or be sued. They include The Administrator General, NEMA, National Council for Children, NDA among others. It is significant to note that parliament creates these bodies as bodies corporate with perpetual succession and a common seal with power to sue or be sued in their corporate names. It is not the duty of this court to question Parliament’s decision not to grant the Inspectorate Corporate status.
It would appear that once the Inspectorate steps on someone’s toes the remedy cannot be in suing the individual tortfeasor.
The remedy lies in suing someone else; it becomes a claim against the government. It is a well founded principle of law that statutes must state exactly what they mean and want achieved.
Construing the law in force, Parliament intended to give absolute immunity to the IGG and his staff, such as MPs and judicial officers.
If no proceedings can lie against the IGG, and if no officer or person serving in the Inspectorate can be compelled to give evidence before any court or tribunal in respect of anything coming to his knowledge by virtue of his office, then it follows that he cannot sue as well in that official capacity.
I hold as I must that no suit can be brought against the IGG and as such he is not a person who can be joined as a defendant, except in his individual capacity after his statutory immunity has been lifted.
Counsel for the applicant argues that the IGG has capacity by virtue of the fact that several proceedings have been brought against him. I would agree with counsel for the appellant that the existence of a legal power cannot be proved by practice. It must be conferred by statute.
Generally speaking the Civil Procedure Rules give court wide powers to strike out or add parties to suits. However, such an addition cannot be for the sake of it.
There must be a compelling legal reason to do so. The principles under which such an application can be allowed are fairly well known.
For the reasons stated, I disallow the application to add the second respondent. I however exercise the discretion of this Court to allow the parties to refine their pleadings and file final submissions reflecting the merits of the appeal within one month from the date of this order and thereafter the matter be put before me on April 14, 2004 for final submissions or directions.
The issue of lack of capacity to sue was raised by the attorney general and supported by the appellant. It is clear that the disagreement between the applicant and his counsel will financially disadvantage the appellant. Considering the above I would decree the costs of this application to the appellant and order that they be paid by the Attorney General.
Yorokamu Bamwine
March 5, 2004
Karugire and Kibeedi for first respondent.
Rwakoojo for second respondent.
Applicant present