ABUSE OF POWER

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.

Grounds for Abuse of

Power
The grounds upon an administrative body or
decision maker exercising discretionary
powers can be challenged for abuse of
power, and thus will be acting ultra-vires are:
(i) Bad faith; or
(ii)
Improper motives; or
(iii)
Irrelevant
considerations
Relevant Considerations or
(iv)
Unreasonableness

and

Grounds for Abuse of

Power
Though these principles are itemized
here as individual elements of the
general principle of abuse of power,
they actually overlap a lot, and on
some cases merge into each other
completely.
Nonetheless, that has not precluded the
courts from attempting to clarify what
each of these elements implies, and when
power ready be said to have been abused
by the administrative authority.

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.

Relevant and Irrelevant

Considerations
An administrative authority which is
vested with statutory functions is subject
to judicial control on the ground of ultravires if in exercising its function it takes
into account irrelevant considerations or,
conversely omits to take into account
relevant considerations.
This principle although it dates back much
further, was spelled out most succinctly in the
case of Associated Provincial Pictures House Ltd
v. Wednesbury Corporation [1948] 1 K.B. 223

Relevant and Irrelevant

Considerations
The Sunday Entertainment Act, authorities to permit
licensed places to be opened and used to be opened
and used on Sundays, subject to such conditions as
the authorities think fit to impose. A local authority
authorized the Plaintiffs to open on Sundays subject
to the conditions that no children under 15 years of
age should be admitted to Sunday performances.
The Court of Appeal decided that it was in
order for the authority to have taken into
account, as they had, such factors as the
physical and mental well-being and health of
the children.

Relevant and Irrelevant

Considerations
Lord Green, M.R. said, on page 233-234, The
court is entitled to investigate the action of
the local authority with a view to seeing
whether it had taken into account matters
which it ought not to take into account or
conversely has refused to take into account
matters which it ought to take into account.
The central issue in the application of this
principle is the determination of what factors
are relevant and what factors are irrelevant
in a particular case.

 Ultimately it is for the courts to determine

this issue:
As Lord Esther, M.R said in R. v.St. Pancras
Vestry [1890] 24 Q.B.D 371 at 375:
If people who have to exercise a
public duty by excising their discretion
take into account matters which the
court considers not to be proper.
Then in the eyes of the law they have
not exercised their discretion.

Relevant and Irrelevant

Considerations
In exercising this function the courts get
some guidance from the provisions of the
relevant statutes especially where, as
sometimes may be the case, the statute
enumerates a series of factors or matters
to be considered by the authority.
Even where the statute is silent in this regard,
which is the more usual situation, the courts
will consider the policy of the legislation
and determine from it the intention of
the legislature.

Relevant and Irrelevant

Considerations
This wide power carried by the courts enable
them to impose their own reasoning in the
administration of particular statutes.
This in Roberts V. Hopwood [1925] A.C.578,
the poplar Borough Council were empowered
by statutes to pay their employees such
salaries and wages as they may think fit. In
an attempt to present themselves as
benevolent employers, the council set wages
which were much higher than the general level
of wages in the district at the time.

Relevant and Irrelevant

Considerations
Their decision was disallowed by the
auditor whose decision was upheld by
the House of Lords.
Lord Atkinson considered that the councils
philanthropic
purposes
were
not
relevant to the exercise of their power.
The council ought not to have allowed
themselves to be misled by some eccentric
principles of socialistic philanthropy

Relevant and Irrelevant

Considerations
In Farmers Co-operative Ltd V. Lusaka
Municipal council [1959] R. & N. 491,the
appellants owned three plots of land in the
centre of Lusaka on which were some
shops, offices and warehouses.
The Respondents never assed the ratable
value of the land at 115,760 pounds. In
rriving at this figure, the
valuer had
considered other factors, his view formed
from sales of land in the vicinity.

Relevant and Irrelevant

Considerations
The Appellant lodged an objection to this
valuation, claiming that it should have been
74,570.
a valuation court dismissed the
objection.
The appellant then appealed to the high Court.
It was held that the valuer was entitled to
take into account as a factor assisting him
to form his opinion of the unimproved
value of the land concerned, the prices
obtained for other comparable land in the
vicinity.

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.

A person in whom is vested a

discretion must exercise his discretion
upon reasonable grounds. He must,
by the use of his reason, ascertain and
follow the course which reason
directs. He must act reasonably.

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.