Remedies for Breach of Human Right

Remedies for Breach of Human Right

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:

The Order of Mandamus

Mandamus is a prerogative writ directed to a person, or body to compel the performance of a public duty. It is now replaced by an order of Mandamus which is comprised in the procedure known as judicial review.

Mandamus is an order which compels the performance of a public duty as a first resort where no other remedy is available[1].  The court in the case of Comptroller General, Nigeria Customs service & ors v Minaj Holdings ltd[2] held that an order of mandamus is one issued by a court of law to compel the performance of a public duty in which a party has sufficient legal interest, after refusal, failure or neglect to do so, on demand. If there is discretion in performance of duty, the court has the power to examine whether the discretion to refuse to act has been properly exercised.

In exercise of that power, the court will not lightly overrule the discretion just because it considers it desirable that the duty be performed.  The court further held that where a person or body has a duty of public nature to perform or discretion of a public nature to exercise, order of mandamus can be issued to compel the performance of the duty or exercise of the discretion provided a request to so do preceded it.

In the case of Adegbenro & anor v Akintilo & ors[3] held that the purpose of the order of mandamus is to compel a public officer to perform his duty. In R v Western Urhobo Rating Authority, Ex parte Chief Odie and Or[4], it was held that the power to grant an order of mandamus is discretionary and will only be granted against whom it is sought if the person is bound to perform the duty which must be of a public nature.

It is instructive to emphasize that the order of mandamus enforces the legal right of an applicant where there is a right but there is no remedy to enforce it. Once a remedy already exists, the proper order will not be one of mandamus.

The right to freedom of movement may be enforced through an order of mandamus. For instance, if after fulfilling all the conditions for issuing a travelling passport, the public officer in charge fails or refuses to issue it[5].

The Order of Certiorari:

Certiorari is a prerogative order which enables a superior tribunal to call upon an inferior tribunal to bring up the record upon which the inferior court or administrative tribunal based its decision of a judicial or quasi-judicial nature.

It enables the superior tribunal to review that record with a view to ascertaining the legality of the decision based on it. Thus, where any of the fundamental rights has been violated consequent upon the decision of a body, authority or person, acting in judicial or quasi-judicial capacity, the writ of certiorari will lie.

In Okoye v Lagos State Government,[6] the Court of Appeal noted that:

Generally, a body exercising powers which are of a merely advisory, deliberative, investigatory or conciliatory character or which do not have legal effect until confirmed by another body, or involves only the making of a preliminary decision will not normally be held to be acting in a judicial capacity.

However, where the determination by such statutory body may be either one that purports to create, vary or extinguish legal rights, or one that purports to declare existing legal rights… certiorari and prohibition will sometimes be issued[7].

It is therefore not a prerequisite for the writ to lie that the body must have legal authority to act judicially; it lies against the decision of a respondent who has the power to make a decision affecting the right or interest of the applicant.

In Queen v The Governor in Council, Western[8], the applicant, a Chief was deposed and his chieftaincy stool declared vacant without giving him hearing. An application for certiorari succeeded.

Also, in Garba v University of Maiduguri[9] the Supreme Court had no hesitation in invoking Certiorari to quash the decision of the administrative panel of inquiry which the University had set up on the ground of want of jurisdiction.

The Order of Prohibition

Like certiorari, prohibition is a prerogative order. It lies to restrain an inferior tribunal or body of persons which has a legal authority to determine questions affecting the right of a subject from exceeding its jurisdiction[10].The order of prohibition is therefore available to an applicant to prevent the performance or continuance of administrative action which must be judicial or quasi-judicial in nature[11].

The conditions for the availability of this order are substantially the same as those required of an applicant for an order of certiorari. These are that the tribunal against whom the order is sought must have been performing judicial or quasi-judicial function or at least there is stage in the proceedings when the statutory body or tribunal performed or should perform such function as for example, holding an inquiry or, deciding lis inter partes.

Probably, the only difference is that unlike certiorari, prohibition will not lie unless something remains to be done by the tribunal on whose proceedings the order is to lie.

Consequently, if nothing remains, then the proper application must be for an order of certiorari to quash. Basically, there are two types of orders of prohibition. These are quosque prohibition and peremptory prohibition.

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The difference between the two lies in the fact that once the peremptory prohibition is granted the whole proceedings are immediately brought to a halt whereas if quosque prohibition is granted, the proceedings may go ahead on the condition that the offending part of the proceedings is first of all removed.

Quosque prohibition is hardly used. Thus, where prohibition is simply applied for, it is usually understood to mean peremptory prohibition. One instance in which the order of prohibition would be readily granted is where there has been a breach of the rules of fair hearing.

The Order of Injunction

An injunction is another discretionary and equitable remedy. Unlike a declaration, an injunction is a positive order with a sanction attached to it such as imprisonment, fine or any other sanctions enforceable at the discretion of the court. The court in the case of Lasisis & anor v Nwanna[12]  held that an order of injunction is inevitable, where there is a challenge to possession and a claim in trespass is founded and damages awarded then an order of injunction must follow to stamp a note of finality to the dispute.

Furthermore, the court in another case of Adewale v Executive Governor, Ekiti State & anor[13]  held that the essence of the grant of an order of injunction is to protect the existing legal rights of a person from unlawful invasion by another. The reason for this, is to enable matters to be kept in status quo pending when the court will determine the issues at stake in the substantive suit.

Basically, there are two classes of injunction, namely, prohibitory and mandatory.

A prohibitory injunction is an order which prohibits a person from doing a wrongful act. On the other hand, a mandatory injunction affirmatively directs the doing of an act. An injunction may be claimed concurrently with other reliefs like declaration and damages, as was the case in Williams v Majekodunmi[14].It is an appropriate order to restrain an individual, any government, its agent, or extra- governmental agency from interfering with the right of movement, personal liberty or freedom of thought, conscience and religion.

 

[1]   T.A. Aguda, Practice and Procedure of the Supreme Court of Appeal and High Court of Nigeria, London:    Sweet and Maxwell, 1980 at 668.

[2] (2017) LPELR-CA/L/365/2013

[3] (2009) LPELR-CA/I/19/2006

[4]   1961) All NLR. 796. See also Banjo &Ors.  v  Abeokuta Urban District Council (1965) NMLR. 295.

[5]   The case of Gani Fawehinmiv. Colonel AliluAkilu & Anor(1987) 1 NWLR 554 provided a celebrated      example of the Invocation of the Order in Nigeria. See also, Architects Registration Council of Nigeria (in     Re: Majora) v Prof. M.A Fassasi(1987) 3NWLR42.

[6]    (1990)3 NWLR. Pt 136 at 115.

[7]    Per Akpata, J.C.A. Ibid. At 125.

[8]    Ex parte Ishmeal Obatenu Adebo(1962) WNLR. 93.

[9]   (1986)1 NWLR(PT18)550.

[10]    Per Akpata, J.S.C. in Okoye v Lagos State Government. Supra at 127.

[11]    See, Gani Fawehinmiv Legal Practitioners Disciplinary Committee (1985)2NWLR(Pt7)300, Oduwole v    Famakinwa(1990)4NWLR (Pt143)239.

[12] (2012) LPELR-CA/i/178/08

[13] (2006) LPELR-CA/IL/3/2005

[14]   (1962)1 All NLR 413.

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