Remedies for Breach of Human Right (2)

Remedies for Breach of Human Right (2)

There are plethoras of remedies available to a person or body whose fundamental rights have been breached or about to be infringed upon by the government, individual or body. They include but not limited to the following:

Damages

Damages are monetary awards made to litigants to assuage them for the loss suffered. Damages may be claimed concurrently with other reliefs such as declaration and injunction. It is an appropriate remedy in cases of infraction of the right to freedom of movement, or unlawful acquisition of property, or an invasion of the right to personal liberty or privacy.

In Shugaba Darman v Minister of Internal Affairs &Ors[1], the applicant who suffered deportation from Nigeria on the order the Minister of Internal Affairs sought among others, damages for assault and unlawful deportation and interference with his freedom of movement. It was held, inter alia, that in seeking redress for the infringement of his fundamental right, any person can claim any form of redress, including a declaratory order, injunction and damages.

 

The court, while awarding a sum of N350,000.00 damages to the applicant held further that an infringement of fundamental rights of Nigerian citizens must attract compensatory damages and in some cases ought to invite exemplary damages. Indeed, section 35(6) of the 1999 Constitution expressly provides that:

Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.

It is noteworthy that often times, damages awarded by the courts are too little to be compensatory. The practical implication of this is that victims of human rights violations are discouraged from seeking judicial intervention while violators are encouraged to continue their reckless assault on human rights.

Declaratory Orders

A declaratory judgment is an equitable remedy which lies at the discretion of the court. It is available to an individual who can prove that his private right including any of the fundamental human rights has been infringed by a government, its agent, any public authority, or another private person.  The court in the case Odusole v The Military Governor of Ogun State & ors[2]  held that to grant or refuse declaratory orders, the court has judicial discretion to be exercised judicially and judiciously.

Where a public right is affected, it is the Attorney-General who is competent to seek redress. A litigant seeking to move the court for an order of declaration must show that there is a real controversy and not merely a hypothetical problem.

A declaration merely states or declares the right or rights of the litigants without any positive order to do or not to do any act. Since declaratory judgments are not self-executory or self-enforceable, they are often sought together with some other positive reliefs such as injunction, damages or habeas corpus.

The Supreme Court has stated the legal effect of a declaratory judgment quite aptly that it ‘‘merely proclaims the existence of a legal relationship and it does not contain any order which may be enforced against the defendant’’[3].

 

Habeas Corpus

The writ of habeas corpus literally means “to have body.” It is an extraordinary prerogative remedy which is issued upon case shown in cases where the ordinary legal remedies are inapplicable or inappropriate. It is used primarily to challenge the detention of any person either in official custody or in private hands. Its utility is to ensure that a person wrongfully detained is released forthwith.

The court in the case of Ajakaiye v FRN[4] held that a person released on a prerogative writ of habeas corpus is neither discharged, nor acquitted of the offence for which he was detained, because he has not been formally charged and tried in court of law under due process of law.

It was further held that the writ may also be used to obtain a judicial review of the regularity of the extradition process, the right to or amount of bail or the jurisdiction of a court that has imposed a criminal sentence.

The nature and utility of habeas corpus was pungently stated by Ademola, J. C. A. in Agbaje v Commissioner of Police[5], as follows:

The writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody. The purpose is to inquire into the cause for which a subject has been deprived of his liberty… if there be no legal justification for the detention, the party is ordered to be released.

Thus, where the personal liberty of an individual as guaranteed by S. 35 of the 1999 Constitution is interfered with through confinement, such a person may make an application to court for the writ of habeas corpus to issue for the purpose of securing the restoration of his liberty.

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Habeas corpus application is certainly the most effective, beneficial and expeditious remedy in every case of detention. The application for the writ is started at the High Court by filing a motion supported by an affidavit by or on behalf of the person detained, setting out the nature of his confinement. Upon disclosure of sufficient cause, the judge before whom the application is brought may order that the writ should issue forthwith to produce the applicant.

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Where a judge declines to make such an order, the applicant is at liberty to bring the application before any other judge with or without fresh evidence and the later judge would be bound to hear and determine the application on its merits notwithstanding the fact that some other judge had earlier refused a similar application[6].

In making application for the release of a person from unlawful custody under the present dispensation, the applicant merely files application for the enforcement of his fundamental right without specifically heading it a writ of habeas corpus.

 

 

[1]  (1981) 2 NCLR 459.

[2] (2002) LPELR-/CA/I152/94

[3]   Per Agbaje, J.S.C. in Okoye v Santilli (1990)3 SCNJ 83 at 100.

[4] (2010) LPELR/CA/L/129/2001

[5]   (Unreported) Suit No. CAW/81/69 of 27/8/1969.

[6]   See generally, Order 4 of the Fundamental Rights (Enforcement Procedure) Rules, 1979; see also        Eshugbayi Eleko v Government of Nigeria (1928) A.C. (P.C (P.C.) 459; Re Mohammed Oluyori & Ors.    Suit   No. M/169/69 of 17/11/1969.

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