Judges and magistrates are protected from being sued for their judicial acts, because a judge who could be sued by every losing party could not decide anything. The District Courts Act writes that protection out in detail, and leaves a small door open.
The one case where an action lies
(1) Subject to this Part, a person injured by an act done by a Magistrate in a matter in which by law he has no jurisdiction or in which he has exceeded his jurisdiction, or by an act done under a conviction, order or warrant in any such matter, may maintain an action against the Magistrate.
(2) An action is not maintainable for anything done under a conviction or order, or under a warrant to procure the appearance of the person charged that was followed by a conviction or order, until after the conviction or order has been quashed or set aside under this Act.
(3) No action lies for anything done under a warrant not followed by a conviction, or on an information for an indictable offence, if a summons was first issued and served and the person did not appear.
An action shall not be brought in a District Court against a Magistrate in respect of anything done by him in the execution of his office.
So the claim must be in the National Court, must concern an act outside jurisdiction, and must wait until the decision has been quashed. Section 9 presumes a magistrate’s act to have been within jurisdiction absent proof to the contrary, so the plaintiff carries that burden.
The procedural hurdles
| Section | Requirement |
|---|---|
| s 252 | Commence within six months of the act, or two months after the conviction or order was quashed, whichever is later |
| s 253 | At least one month’s written notice to the magistrate, clearly specifying the cause of action and the court, endorsed with the plaintiff’s and lawyer’s names and addresses |
| s 254 | The magistrate may tender amends after notice, or pay money into court; if the plaintiff recovers no more, judgment for the magistrate |
| s 256 | The statement of claim must expressly allege that the act was done maliciously and without reasonable and probable cause; if denied and not proved, judgment for the magistrate |
| s 257 | Failure to prove time, notice or the cause of action stated in the notice: judgment for the magistrate |
| s 258 | If the plaintiff was in fact guilty, or liable to pay, or served no more than the lawful punishment, damages for the penalty or imprisonment are limited to two toea |
| s 251 | An action declared not maintainable may be set aside or stayed by a judge on affidavit |
Sections 248 to 250 add further immunities: a magistrate who bona fide grants a warrant on another court’s conviction is not liable for its defects; a magistrate obeying a National Court order is not liable; and nothing done under a warrant on a decision later confirmed on appeal is actionable. Section 259 extends the whole Part to Clerks. Section 236 protects a magistrate enforcing a National Court appeal decision.
What is not actionable
A magistrate who hears a case he has power to hear and decides it wrongly, however badly, has done an act within jurisdiction. Part XII gives no action for that, and the common law immunity for judicial acts applies. Refusing an adjournment, admitting evidence that should have been excluded, imposing a sentence within the maximum that is too heavy, believing the wrong witness: all are for appeal, not for a writ. The Act’s remedies are the appeal under Part XI, the National Court’s review power under Constitution section 155(3), and the order in lieu of mandamus under section 13. See appeal versus review.
Suing the State instead
Where the complaint is that a magistrate’s act breached a constitutional right, for example an unlawful detention, the practical claim is often against the State under Constitution section 57 and 58 rather than against the magistrate personally, subject to notice under section 5 of the Claims By and Against the State Act. The State’s liability for judicial acts is itself limited, and such claims typically succeed where police or correctional officers acted without lawful authority rather than where a magistrate erred. See enforcing basic rights and the section 5 notice.
Complaining about a magistrate
Magistrates are officers of the Magisterial Service under the Magisterial Service Act, and section 2 gives the Chief Magistrate the powers of administration and discipline over them that the Act and the Judicial and Legal Services Commission confer. In Jacob v Manuhu (2005) SC802 a senior magistrate charged with soliciting money in the course of his duties was suspended, charged by the Chief Magistrate, and dismissed by the Commission; the Supreme Court upheld the dismissal of his judicial review. A litigant who believes a magistrate acted corruptly or improperly complains in writing to the Chief Magistrate, who may investigate and lay charges. This route addresses the magistrate’s conduct; it does not alter the decision, which still requires an appeal.
When an action makes sense
The realistic case is one where a magistrate acted wholly outside the Act, for example committing a person to prison for a civil debt without a judgment summons hearing, and the person was imprisoned as a result. Even then, the sequence is: appeal or review to quash the order; written notice to the magistrate within the six months; then a National Court writ pleading malice and want of reasonable and probable cause, with the evidence to prove both. Most litigants who reach the end of that sequence find the appeal gave them what they needed.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.