The Independent Uganda: You get the Truth we Pay the Price
Kampala, Uganda | THE INDPEENDENT | Government officials cannot be held personally liable for mistakes made while performing their duties, as long as the actions were taken in good faith, a court in Kampala has ruled. In his ruling on a judicial review application filed by Kabira Aisha, a principal registrar of titles at the Ministry of Lands, Justice Bonny Isaac Teko said that a government employee’s action can be illegal, but for the employee to be held personally liable, there must be proof that it was carried out in bad faith.
“For a suit against a Registrar to be tenable, the plaintiff must plead and prove absence of good faith-i.e., malice, fraud, or bad faith…This Court has carefully examined the Respondent’s Notice of Motion and Supporting Affidavit from Misc. Cause 227 of 2023. The allegations are primarily that the Applicant acted “illegally” and with “impunity” by proceeding with a cancellation despite being informed of a pending case. While these are serious allegations, they are arguably legal conclusions. The critical question is whether they constitute a sufficient plea of bad faith as opposed to a plea of legal error. The finding of the trial court that the Applicant acted “illegally” is a finding that she made a legal error.
A finding of legal error is not synonymous with a finding of bad faith. Bad faith implies dishonesty, malice, or an improper motive. An official can act mistakenly or even unlawfully but still be acting in the good faith belief that they are performing their duty,” the court ruled. According to the court record, Nagujja Sylvia Lutta sued the Kabira and the Commissioner for Land Registration for unlawful cancellation of her name from a certificate of title for land, even when there was a pending suit challenging the ownership of the land in the Masaka High Court.
Nagujja alleged that during a public hearing at the Ministry of Lands, her son, Tabula Paul, informed the officials present, including Kabira, that the land in question was subject to litigation and therefore it would be wrong to change the ownership before the matter was determined. She then challenged the decision in court, which ruled against the Commissioner for land registration and Kabira. The court ordered that Kabira pay the cost of the suit. Dissatisfied, Kabira applied for judicial review, arguing that there was an apparent mistake that had been committed by the court that needed to be remedied. She argued that as an employee of the government, she can’t be held accountable for her official actions.
“This Court finds that the Applicant has raised a prima facie and arguable case that there is an error of law apparent on the record. The error is this: the trial court may have held the Applicant personally liable for a legal error (cancelling a title while a case was pending) without making a specific finding that she acted with the malicious or dishonest intent required to pierce the statutory and constitutional immunity she enjoys. The conflation of an “illegal” act versus an act done in “bad faith” is a potential error of law,” the judge ruled.
Kabira also argued that as an agent of the Commissioner of Land Registration, she can’t be held liable in her personal capacity when the principal for whom she was working is disclosed. On this, the judge held that indeed an agent can’t be held accountable where there has been disclosure of the principal unless there is evidence that they acted outside his/her mandate.
“The general rule is that a person who contracts as an agent for a disclosed principal cannot be held liable on that contract… A well-established exception exists where the agent commits a tort in their own right. If an agent acts fraudulently, maliciously, or beyond the scope of their authority, they can be held personally liable. The principal’s liability in such cases is vicarious, meaning it is derivative of the agent’s primary liability,” the court held.
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