STATE PROCEEDINGS ACT, 1998 (ACT 555)

STATE PROCEEDINGS ACT, 1998 (ACT 555)

DATE OF PRESIDENTIAL ASSENT: 19th August, 1998.

DATE OF GAZETTE NOTIFICATION

AN ACT to provide for proceedings against the Republic in conformity with the Constitution and for related matters.

1. Claims against the Republic

Where a person has a claim against the Republic, the claim may be enforced as of right by proceedings taken against the Republic for that purpose without the grant of a fiat or the use of the process known as petition of right.

2. Liability of the Republic in contract

The liability of the Republic is the same as that of a private person of full age and capacity in respect of

(a) claims arising out of an express or implied contract with the Republic,

(b) claims for liquidated or unliquidated damages in cases not arising in tort, and

(c) claims for the recovery of taxes or duties wrongly paid or overpaid.

3. Liability of the Republic in tort

(1)  The Republic is subject to the liabilities in tort to which, if it were a private person of full age and capacity, it would be subject, in respect of

(a) torts  committed  by  its  employee  or  agent  while  acting  within  the  scope  of  the  office  or employment of the employee or agent,

(b) a  breach  of  duty  which  an  employer  owes  to  the  employee  or  agent  of  that  employer  at common law or under any other law by reason of being the employer, and

(c) a  breach  of  the  duty  at  common  law  or  under  any  other  law  attached  to  the  ownership, occupation, possession or control of property.

(2)  Proceedings do not lie against the Republic by virtue of paragraph (a) of sub-section (1) in respect of an act or omission of an employee or agent of the Republic unless the act or omission would, apart from this section, have given rise to a cause of action in tort against that employee or the estate of the employee.

(3)  Where the Republic is bound by a statutory duty which is binding also on persons other than the Republic and its officers, the Republic shall, in respect of a failure to comply with that duty, be subject to the liabilities in tort to which it would be so subject if the Republic were a private person of full age and capacity.

(4)  Where functions are conferred or imposed on an officer of the Republic in that capacity by a rule of  the  common  law  or  by  statute  and  that  officer  commits  a  tort  while  performing  or  purporting  to perform those functions, the liabilities of the Republic in respect of the tort shall be what they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Republic.

4. Non-liability of the Republic

Proceedings do not lie against the Republic under this Act in respect of

(a) anything  done  or  omitted  to  be  done  by  a  person  while  discharging  or  purporting  to discharge responsibilities of a judicial nature vested in that person;

(b) an act, neglect or a default of an officer of the Republic unless that officer

(i) has been directly or indirectly appointed by the Republic and was, at the material time, paid in respect of duties as an officer of the Republic wholly out of public funds or out of money provided by Parliament; or

(ii) was,  at  the  material  time,  holding  an  office  in  respect  of  which  the  Public  Services Commission certifies that the holder of that office would normally be so paid.

5. Application of law relating to indemnity

Where  the  Republic  is  subject  to  liability  by  virtue  of  this  Act,  the  law  relating  to  indemnity  and contribution is enforceable, as if the Republic were a private person of full age and capacity

(a) against the Republic by an employee of the Republic who is acting in the proper execution of duties in respect of the liability or by any other person in respect of the liability to which that person is subject, or

(b) by the Republic against a person, other than an employee of the Republic, in respect of the liability to which it is subject.

6. Provision as to intellectual or industrial property

Where an employee or agent of the Republic infringes a patent, a registered trade mark or a copyright and  the  infringement  is  committed  under  the  authority  of  the  Republic,  then  subject  to  this  Act,  civil proceedings in respect of the infringement lie against the Republic.

7. Provisions relating to the Armed Forces

(1)  Subject to subsection (2), a thing done or omitted to be done by a member of the Armed Forces while  on  duty  shall  not  subject  the  member  or  the  Republic  to  liability  in  tort  for  causing  death  or personal injury where the death or injury is to another member of the Armed Forces where,

(a) at the time when the death or injury is suffered by that other person the member is on duty as a member of the Armed Forces or though not on duty, the member is on a land, ship or an aircraft or a vehicle which is being used for the purpose of the Armed Forces, and

(b) the Minister responsible for Defence certifies that the death or injury is attributable to service for the entitlement of an award under a law relating to the grant of awards to members of the Armed Forces for disablement or death.

(2)  Subsection (1) does not exempt a member of the Armed Forces from liability in tort in an action in which the Court is satisfied that the act or omission was not connected with the execution of duties as a member of the Armed Forces.

(3)  Proceedings in tort do not lie against the Republic for death or personal injury due to anything suffered by a member of the Armed Forces where,

(a) the  death  or  personal  injury  is  suffered  by  the  member  in  consequence  of  the  nature  or condition of a land, ship, an aircraft or a vehicle or in consequence of the nature or condition of an equipment or the supplies used for the purposes of the Armed Forces, and

(b) the Minister certifies as provided under paragraph (b) of subsection (1).

(4)  An act or omission of a public officer shall not subject the public officer to liability in tort for death or personal injury, to a member of the Armed Forces in circumstances where paragraphs (a) and (b) of subsection (3) apply.

(5)  Where the Minister is satisfied that

(a) a person was or was not on a particular occasion on duty as a member of the Armed Forces, or

(b) at a particular time, land, premises, a ship, an aircraft, a vehicle, an equipment or a supply was or was not used for the purposes of the Armed Forces,

the  Minister  may  issue  a  certificate  to  that  effect  and  the  certificate  is,  for  the purpose of this section, prima facie evidence as to the fact it certifies.

8. Civil proceedings by or against the Republic

Civil proceedings by or against the Republic shall as far as is practicable be instituted and proceeded with in a Court in accordance with the Rules of Court applicable to proceedings between private persons.

9. Parties to proceedings

(1)  In accordance with article 88 of the Constitution, civil proceedings

(a) by  the  Republic  shall  be  instituted  and  conducted  on  behalf  of  the  Republic  by  the Attorney-General or a person authorised by the Attorney-General;

(b) against the Republic shall be instituted against the Attorney-General as defendant.

(2)  Proceedings instituted in accordance with this Act by or against the Attorney-General or any other officer shall not abate or be affected by a change in the person holding the office.

10. Notice of civil action to Attorney-General

(1)  A person who intends to institute civil action against the Republic shall  serve on the Attorney-General a written notice of that intention at least thirty days before the commencement of the action.

(2)  The notice under subsection (1) shall be served by the claimant or by the lawyer or agent of the claimant

(a) on the Attorney-General or an officer of the Attorney-General’s Department, or

(b) in  a  case where action is to be commenced in a Region, on an officer  of the Attorney-General’s Department in that Region.

(3)  The notice shall indicate the cause of action, the name and address of the intended claimant and the relief sought.

11. Interpleader

The Republic may obtain relief by way of interpleader proceedings and may be made a party to those proceedings in the same manner in which a private person may obtain relief by way of those proceedings or may be made a party and the Rules of Court relating to interpleader proceedings shall, subject to this Act, apply.

12. Service of documents

Documents  required  to  be  served  on  the  Republic  for  the  purpose  of  or  in  connection  with  civil proceedings by or against the Republic shall be delivered at the office of the Attorney-General or to a representative of the Attorney-General in the Region or to an officer specified under any other enactment.

13. Nature of relief against the Republic

In civil proceedings by or against the Republic, the Court may make the orders which it has power to make in proceedings between private persons and may give the relief that the case requires.

14. Appeals and stay of execution

Enactments and Rules of Court relating to appeals and stay of execution shall, with the modifications that  are  necessary,  apply  to  civil  proceedings  by  or  against  the  Republic  as  they  apply  to  proceedings between private persons.

15. Satisfaction of orders

(1)  Where  in  civil  proceedings  by  or  against  the  Republic  or  in  connection  with  an  arbitration  to which the Republic is a party, an order including an  order for costs is made by a Court in favour of a person against

(a) the Republic,

(b) a department of the Republic, or

(c) an employee of the Republic,

the Court shall issue to that person a certificate containing particulars of the order on an application made by or on behalf of that person, at any time after the expiration of twenty-one days from the date of the order where the order provides for the payment of costs and the costs are required to be taxed, at any time after the costs have been taxed, whichever is later.

(2)  A copy of a certificate issued under subsection (1) may be served by or on behalf of the person in whose favour the certificate is made

(a) on the Accountant-General, if the certificate contains an order for the payment of money, and

(b) on the Attorney-General in any other case.

(3)  Where the order provides for the payment of an amount of money, the certificate shall specify the amount  of  money  payable  and  the  amount  together  with  the  interest  on  it  shall  be  paid  to  the  person entitled or the lawyer of that person.

16. Enforcement of orders

An order made in favour of the Republic against a person in civil proceedings to which the Republic is a party may be enforced in the same manner as an order made in an action between private persons.

17. Attachment of money

(1)  Where a sum of money is payable by the Republic to a person who is under a court order to pay money to another person, that later person is entitled to obtain an order for the attachment of the money as a debt due or accrued under the Rules of Court to that other person.

(2)  The  Court  may,  subject  to  this  Act  and  in  accordance  with  the  Rules  of  Court,  make  an  order restraining a person to whom the Republic is liable to pay money from receiving that money and directing payment of it to any other person.

(3)  A Court shall not make an order under subsection (2) in respect of

(a) the wages or salary payable to an employee of the Republic, or

(b) pension or social security, or

(c) the  money  which,  by  an  enactment,  is  prohibited  or  restricted  from  attachment  or  the execution of a debt.

18. Discovery and interrogatories

(1)  Subject to article 135 of the Constitution and to subsections (2) and (4), enactments relating to the discovery and production of documents and answering interrogatories by an order of a Court shall apply to  civil  proceedings  by  or  against  the  Republic  to  the  same  extent  and  in  the  same  manner  as  the enactments apply to civil proceedings between private persons.

(2)  Subsection  (1)  applies  without  limiting  the  right  to  withhold  a  document  or  refuse  to  answer  a question on the grounds that disclosing the document or answering the question would be injurious to the public interest.

(3)  An order of a Court relating to answering interrogatories shall direct which person is to answer the interrogatories.

(4)  A certificate from  the Supreme Court that it  is satisfied  that  the  disclosure of a document is injurious to the public interest is conclusive evidence for the purposes of this section.

19. Notice of proceedings in rem

Proceedings  in  rem  shall  not  be  brought  in  respect  of  a  claim  against  the  Republic,  or  the  arrest, detention or sale of a ship, an aircraft, a cargo or any other property belonging to the Republic or give to a person a lien on the aircraft, cargo or other property unless there has been served on the Attorney-General a written notice of the intention to bring the action at least thirty days before the commencement of the action.

20. Exceptions to notice of action

(1)  The notice before institution of civil action against the Republic does not apply to

(a) an action to invoke the original jurisdiction of the Supreme Court under articles 2 and  130 of the Constitution, and

(b) an  action  where  a  person  alleges  that  a  provision  of  the  Constitution  on  the  fundamental human rights and freedoms has been, or is being or is likely to be contravened under article 33 of the Constitution.

(2)  Where  in  an  action  against  the  Republic  there  is  a  failure  to  give  the  notice  required  to  the Attorney-General,   the   Court   shall   not   dismiss   the   action   but   direct   the   plaintiff   to   give   the Attorney-General the requisite notice and adjourn the case accordingly.

21. Application of certain enactments

This  Act  does  not  limit  the  right  of  the  Republic  to  take  advantage  of  an  enactment  although  not named in it and in civil proceedings against the Republic, an enactment may be relied on by the Republic subject to an express provision to the contrary.

22. Costs in proceedings

In  civil  proceedings  to  which  the  Republic  is  a  party,  costs  including  those  incidental  to  the proceedings  are  at  the  discretion  of  the  Court  or  arbitrator  and  the  discretion  shall  be  exercised  in  the same manner and on the same principles as in cases between private persons but

(a) in proceedings to which the Republic is required to be made a party, the Court or arbitrator shall consider the nature of the proceedings and the character and circumstances in which the Republic appears as a party and may in the exercise of discretion order any other party to the proceedings to pay the costs of the Republic  whatever may be the result of the proceeding; and

(b) this section does not affect,

(i) the power of the Court or arbitrator to order the payment of costs out of a particular fund or property, or

(ii) an enactment providing for the payment.

23. Rules of Court

Despite section 8 the Rules Committee may where it considers it necessary make the modifications that are necessary to the Rules of Court in respect of proceedings by or against the Republic.

24. Non-application of Act

Except as otherwise expressly provided, this Act does not

(a) apply to criminal proceedings, or

(b) subject  the  Republic  to  any  greater  liabilities  in  respect  of  the  acts  or  omissions  of  an independent contractor employed by the Republic other than those to which a private person would be subject in respect of an act or omission.

25. Pending proceedings

(1)  This Act does not affect proceedings commenced before the coming into force of this Act and for the purposes of this section, proceedings shall be regarded as commenced if the statement of claim has been delivered at the office of the Attorney-General or to an authorised officer before the coming into force of this Act.

(2)  Proceedings commenced before the coming into force of this Act may be continued and concluded under the law under which they were commenced.

26. Interpretation

In this Act, unless the context otherwise requires,

agent” when used in relation to the Republic includes an independent contractor employed by the Republic;

Armed Forces” means the Army, the Navy and the Air Force;

civil proceedings” includes proceedings for the recovery of fines or penalties;

Court” means a court of competent jurisdiction;

employee” in relation to the Republic, includes a public officer, a member of the Armed Forces, but not an employee of a public corporation set up for commercial purpose despite a provision to the contrary in this section;

Minister” means the Minister responsible for Defence;

private person” means an individual person of twenty-one years or above and of sound mind;

proceedings against the Republic” includes a claim by way of set-off or counter claim raised in proceedings by the Republic;

public officer” means a person who holds a public office, the emoluments attached to which are paid  directly  from  the  Consolidated  Fund  or  directly  out  of  money  provided  by  Parliament  and  an office  in  a  public  corporation  established  entirely  out  of  public  funds  or  money  provided  by Parliament;

Region” means a Region within the meaning of the Chapter Two of the Constitution.

27. Repeals

Spent.

Leave a Reply

Your email address will not be published. Required fields are marked *

Back to top button
Close
Close