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CHAPTER TENGOVERNMENT’S LIABILITY10.1 CONTRACTUAL LIABILITYSection 4 (c) of the Government Proceedings Ordinance provides thatclaims are enforceable by proceedings against the Government where suchclaims arise out of any contract made by the authority of the government whichwould, if such arisen between subject and subject, afford grounds for civilproceedings.Under Article 69 (1) of the Federal Constitution, the Federation has power toacquire, hold and dispose of property of any kind and to make contract.The contract to be binding on the government has to be one made by theauthority of the government.Section 6 of the Government Contracts act 1949, provided that no contracts shallbe deemed to be made by the authority unless those are made according to theprocedures laid down in the Act.Section 2 further provides for the contract if reduced into writing, are to be madein the name of the government, and the government Officers signing thesecontracts should possess written authority from the Government without whichthe contract will not bind the government in case of breach.Section 8 states that no public officer shall be liable to be sued personally uponany contract which he makes in that capacity, but a public officer shall bepersonally liable when he expressly pledges his personal credits, or where heLEARNING OBJECTIVESUpon completion of this chapter, you should be able to:- Understand the government’s liability in tort and contractcontracts otherwise than as the agent of the government.Section 29 (1) of the Govt. Proceedings Ord. Provides that specific performancecannot be granted against the government, but in lieu thereof, the court maymake an order declaratory of the rights of the parties.On the basis of these provisions, it was ruled in RAMAMOORTHY vMENTERI BESAR OF SELANGOR [1969] 2 MLJ 97, that a claim forspecific performance was not sustainable against the Menteri Besar of a Stateand the court could only make an order declaratory of the rights of the parties.Also in the case of HAJI ISMAIL BIN CHE CHIK v STATECOMMISSIONER, PENANG, [1975] 1 MLJ 271, the court ruled that it hadno power to grant an injunction in lieu thereof it could only grant a declaration.However, in TENGKU HAJI JAAFAR v GOVT. OF PAHANG [1978] 2MLJ 105, the court ruled that an interim injunction against the StateGovernment was not barred under Section 29 (1).10.2 TORTIOUS LIABILITYSection 5 of the Govt. Proceedings Ord provides that the government willbe liable for any wrongful act done, or any neglect or default committed, by anypublic officer in the same manner, and to the same extent, as that in which aprincipal, being a private person, is liable for any wrong done or any neglect ordefault committed by his agent.An agent is defined as any public officer acting or purporting in good faith to beacting in pursuance of a duty imposed by law, and such an officer is deemed tobe acting under the instructions of the government.Chapter Ten: Government’s LiabilityTortuous= involving or constituting a civil wrongdoing which damages can be sought by theinjured party.Injunction= a court order that requires somebody involved in a legal action to do something orrefrain from doing somethingSection 6 (1) states that if the act complained of not would not have given rise toan action against the officer concerned, the action as against the government willfail.In the case of HAJI ABDUL RAHMAN v GOVT OF MALAYSIA [1966] 2MLJ 174, the plaintiff brought an action to recover damages arising put of atraffic accident due to the negligence of the driver of a government vehicle. Thedriver of the government motor vehicle was not made a party to the action. Thecourt dismissed the action as the government servant was not made asdefendant.. The identity of the concerned officer must be ascertained and theliability of the officer must be established before the government can be madeliable.But in the case of LAI SENG & CO v GOVT OF MALAYSIA [1973] 2 MLJ36, the court held that, a cause or matter is not to be defeated because of nonjoinderof any party, and the court may deal with the matter as regards the rightsand interests of the parties actually before it. Failure to identify the officerconcerned would not result in the action becoming fruitless.The question whether the identity of the wrong-doing officer needs to beestablished or not, depends on the nature of the cause of action. In a suit fordamages arising out of negligence, the officer’s identity is necessary becausethere is the element of his negligence to be established before the governmentcan be liable. But in case of excess duty demanded, the identity of the officerconcerned is immaterial.Section 6(2) provides that if any act, neglect or default committed by him, thento that extent, the liability of the Government is also limited.In ZAHRAH BTE HUSSIN v GOVT. OF MALAYSIA ]1978] 2 MLJ 65,A member of a security forces shot dead two villagers in the forest at nightNegligence= a civil wrong (tort) causing injury or harm to another person or to property as theresult of doing something or failing to provide a proper or reasonable level of care, carelessDismiss= refuse to give further hearing to a case in courtsuspecting them to be communist terrorists. A suit for damages was broughtagainst the government on the ground of negligence of the concerned member ofthe security force. Dismissing the suit, the court ruled that although he wasnegligent in what he did, he was not acting mala fide. He might have beencareless in what he did but he has acted in good faith and in reasonable beliefthat it was necessary for him to act as he did and therefore he acted within thelaw. Explaining the scope of Section 5, the court said that no action can be takenagainst the public officer or the Government provided that he acted in good faithand in a reasonable belief that the action was necessary for the purpose intended.In the TELOK SABANG BHD v GOVT OF MALAYSIA {1978] 2 MLJ 76,The suit arose as a result of the occupation of the plaintiff’s sawmill by thearmed forces. The platoon vacated the shed and a fire broke out in the mainbuilding of the sawmill 31 hours later. The plaintiff claimed damages for thedestruction of the sawmill by the fire through negligence of the platoon. TheGovernment invoked section 5 in protection. The court accepted that section 5,no doubt, gave indemnity to public officers for the purposes intended thereinduring an emergency. But the court ruled that it was a doubtful propositionwhether Section 5 was intended to indemnify an act of expropriation of privateproperty without paying compensation by the armed forces. Indeed, if it were so,it would contravene Article 13 of the Federal Constitution guaranteeing the rightto compensation when private property was so acquired. Nevertheless, the courth 6(3)eld that the fire at the sawmill could not be attributed to the negligence ofthe armed forces as it broke out 31 hours after they had left.Section 6(3) protects the government from any proceedingsfor any acts done or omitted to be done by a personexercising a judicial function.Good faith= honest intentVacate= to empty something of incumbents or occupantsIndemnity= legal exemption from penalties or liabilitiesSection 7 states that no proceedings are to lie against the government on accountof anything done or omitted to be done or refused to be done by the governmentor any public officer in exercise of the public duties of the government.The expression exercise of public duties provided under section 7(2) includes:1. constructions, tenancy etc, of railways, roads, bridle-paths or bridges;2. construction, maintenance etc of school, hospitals or other publicbuildings; or3. drainage, flood prevention and reclamation works; or4. of channels of rivers and waterways.However, under section 7(3) a party may sue for damages or compensationarising out of negligence or trespass in the execution of any works ofconstruction or maintenance undertaken by the government in the exercise of itspublic duties.In a case of a State, a suit is to be brought against the State Government as laiddown in section 22 of the Government Proceedings Ordinance. In FOOK LEEBROS. v CONSERVATOR OF FORESTS [1970] 2 MLJ 60, a suit wasbrought against the Conservator of Forests for excess royalty on timber paid tohim. The suit was dismissed for the royalty on timber is State revenue and hencethe claim could be enforces against the State Government.In HASHIM BIN SAUD v YAHYA BIN HASHIM [1977] 1 MLJ 259,The plaintiff claimed damages against a police inspector for wrongful detention.He was arrested on suspicion of being involved in theft but was released after afew days detention. The court dismissed his claim on the ground that he had notbeen detained illegally or unlawfully by the defendant at any time as there wasreasonable suspicion that he was concerned with the theft and so his arrest waslawful.In MOHAMMED RAIHAN BIN IBRAHIM v GOVT OF MALAYSIA[1981] 2 MLJ 27,The first appellant sustained injuries when he was accidentally struck on thehead by a cangkul wielded by a fellow pupil in the course of the practicalgardening class. He sued for damages claiming that the respondents failed toprovide proper supervision of the pupils participating in the gardening class andfailed to instruct the pupil who caused the injury on the proper use of a cangkul.The High Court dismissed the claim holding that the respondents had givenproper instructions and warnings on the use of gardening implements and hadtaken reasonable steps and precautions to ensure the safety of the pupils whenusing agricultural implements. On appeal, from evidence on record, the courtconcluded that the respondents were negligent for failing to take all reasonableand proper steps to prevent the appellant under their care from sustaining theinjury and that their teacher did not check the condition of the garden tools orprovide a safe system of holding the gardening ERNMENT LIABILITY IN CASE OF INJURIES TO MILITARYPERSONNELA significant limitation on governmental liability is imposed by Section 14 ofthe Government Proceedings Ordinance. It refers to acts or omissions causingdeath of, or personal injury to, a member of the armed forces by another memberof the armed forces while on duty.Neither the government nor he is subject to any liability if the following twoconditions are fulfilled:1. the person deceased or injured was on duty as amember of the forces, or, if not on duty, was on somepremises or vehicle used at the relevant time forpurposes of the forces;2. the Minister of Finance certified that his suffering ordeath would be treated as attributable to service for thepurpose of entitlement to an award under serviceregulations.In CHOO FAH FATT v CHE RUS BIN OTHMAN [1977] 1 MLJ 230,The action for damages arose out of an injury caused to an army personnel as a result of a collision between a military lorry and a civilian lorry. The injuredperson was travelling in a military lorry driven by another military of the force.The Minister of Finance issued the necessary certificate under section 14 of theG.P.O. After such a certificate, neither the government nor the lorry driver couldbe held liable for the plaintiff’s injury and so his action was dismissed by thecourt.MOHAMED BIN HUSSAIN v HASHIM BIN SAID [1978] 1 MLJ 127,There arose and interesting question. The respondent, a member of the armedforces, met with an accident while traveling in a vehicle driven by another armyman. The injured person filed a case claiming damages from the Government asemployer of the driver whose negligence has caused the accident. But before thecase could proceed much further, the necessary certificate under section 14 wasgranted. The case was dismissed but the respondent claimed his costs. TheFederal Court awarded the costs to the respondent against the government.1. Can government be reliable for the tortuous and contractualliability? Why?2. Explain the following cases:MOHAMMED RAIHAN BIN IBRAHIM V GOVT OFMALAYSIACHOO FAH FATT V CHE RUS BIN OTHMAN ................
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