Judicial Remedies

Judicial remedies refer to remedies gotten from the courts by a victim of wrongful conduct or administration. These remedies were not originally developed specifically as administrative law remedies by the English courts. This was due to the fact that at the time of its development, there were no designated administrative law courts which could deal with legal claims against government in an expert manner.

The origin of these remedies can be traced to England where what was in vogue was the use of prerogative writs. Prerogative writs were brought by the King against the Officers to compel them to exercise their functions properly or to prevent them from abusing their powers. Remedies which existed under this Prerogative writ included Certiorari, Prohibition and Mandamus. It was not until the era of Lord Mansfield and Blackstone that habeas corpus was grouped with these remedies under the Prerogative writs as well.

In Nigeria, the remedies are granted under the application for judicial review under the High Court (Civil Procedure) Rules. Order 40, Rules 1-11 of the High Court of Lagos State (Civil Procedure) Rules deals with these remedies extensively and they are discussed in the same fashion below.

Prerogative orders of Certiorari, Prohibition and Mandamus

1. Certiorari

Certiorari serves to direct for the removal of a certified record of a particular case tried in an inferior court, tribunal, inter alia for the purpose of being quashed or rejecting invalid or unlawful administrative decision. The whole objective of Certiorari is to enable the High Court examine the proceedings in the inferior court or tribunal or public authority to see whether its order or decision has been made within its jurisdiction or legally.

In Onwumechili v Akintemi where the respondents, students of the Faculty of law of the University of Ife, who were suspended with immediate effect and for the rest of the session, brought an action seeking for an order of Certiorari to quash the suspension on the grounds of failure to observe the rules of natural justice by the 1st appellant, the Vice Chancellor. The learned trial judge upheld the respondent’s contention and granted the relief sought and when the case was brought on appeal, the Court of Appeal determined the same.

Error of jurisdiction constitutes a fundamental principle upon which an order of Certiorari will be granted as a decision arrived at without jurisdiction is in effect a nullity. However, it is not in every procedural error made by the inferior court or tribunal that would justify the issuance of the writ of Certiorari, the error must be such that will go to the root of the proceedings. Thus in Nwoboshi v State, the Court of Appeal found that the act of the Delta State Executive Council when it rushed to publish the legal notice without complying with all the necessary steps prescribed in the enabling law was very material and as such, was of a nature that would go to the root of the entire action of the administrative body.

2. Prohibition

This remedy lies to prevent or prohibit an inferior court or tribunal from doing something or exercising power in excess of its jurisdiction or acting contrary to the rule of natural justice, where something remains to be done which could be prohibited. Prohibition developed together with Certiorari as part of the system of control imposed by the King’s Bench. The difference between Prohibition and Certiorari lies in the fact that while Certiorari operates after the illegal event has occurred, Prohibition is anticipatory in its effect as it is issued to prevent such illegality from taking place.

Thus, in Shugaba Darman v Minister of Internal Affairs, the Federal Government and its agents, for the enforcement of his fundamental rights and for an order of prohibition filed an application to challenge the deportation of the Plaintiff to Chad from Borno State. The Court of Appeal held the deportation ultra vires and contrary to the provisions of the constitution. An order of prohibition was therefore issued against the inferior tribunal of inquiry to stop it from proceeding with the subject of the determination of the nationality of the Plaintiff.

In LPDC v Fawehinmi, the Court granted a prohibition order to restrict the Attorney General and three others from being part of the LPDC to adjudicate upon the charges brought against the respondent.

A peculiarity of the Prohibition order is the fact that as stated by Kekere Ekun JCA in the case of Danmusa v Inuwa, at the stage of considering an application for leave to apply for an order of prohibition, the trial court is expected to only consider whether the applicant is sufficiently interested in the matter to which the application is related and nothing more.

Note that in general, both remedies of Certiorari and Prohibition are discretionary in nature.

3. Mandamus

Mandamus is an order of the High Court commanding a public authority or official to perform a public duty, the performance of which the applicant has a sufficient legal interest in. Per Paul Craig, the seminal case for the emergence of the writ of Mandamus is Bagg’s case where Bagg, a chief Burgess of Plymouth who was removed from office for unseemly conduct had the order issued against Plymouth because Bagg has been disenfranchised without a hearing.

The development of this remedy reached its zenith in the locus classicus case of Shitta Bey v The Federal Public Service Commission where the Supreme Court overruled both the trial court and the court of Appeal to issue an order to reinstate a public servant whose removal had earlier been decided by the High Court as wrongful.

A fundamental requirement for the grant of an application for Mandamus is the existence of s public duty owed to the applicant. The duty must be of a public nature and must be owed to an individual. An applicant for an order of Mandamus must also show that before seeking the order, he made a specific demand to the respondent to perform the Public duty and the demand has deliberately not been met. The Supreme Court in the case of Fawehinmi v Akilu further examined what constitutes demand and refusal by stating that even inordinate delay or neglecting to respond to the demand for performance may constitute refusal.

In CBN v SAP (Nig.) Ltd., however, the Court did point out that an order of Mandamus cannot be granted where there is a discretion to act. The decision of the Supreme Court in the case of Stitch v AG Federation stands as an exception to this ruling however because in some cases, Mandamus may lie to compel a public officer or a body to perform a duty where the refusal or failure to exercise the discretion has been influenced by improper motive or extraneous consideration.

Lastly, where there is another alternative adequate remedy available to the applicant, the prerogative remedy of Mandamus will not be issued. See the case of CBN v SAP where the Court observed that the alternative remedy of claim of security furnished by the bidder in the event of not being unsuccessful sufficed to prevent the Court from granting the order of Mandamus.

Equitable remedies of Declaration and Injunction

1. Declaration

Declaration is an alternative statement by the Court about a legal issue that has been brought to its attention. A declaratory judgement by itself merely states some existing legal situation; it requires no one to do anything and disregarding it will not amount to contempt of court. It merely opens the way to the use of other remedies such as Mandamus or Injunction for giving effect to it, if necessary.

The breakthrough in the development of declaration as an independent remedy has been reached to the landmark case of Dyson v Attorney General where the Inland Revenue Commission served Dyson with a notice that required him to supply certain particulars under pain of penalty if he did not comply. Dyson refused and then sought declaration that the demand through the notice was unauthorized and ultra vires. The Court of Appeal held that his method of proceeding was a proper one and regarded it as a convenient and beneficial way to test the legality of government action.

An action for declaration is an appropriate means of challenging the validity of a legislation or a document in need of interpretation or an executive or administrative act. Even though at law. a declaratory order is non-coercive, at practice, all government office holders, functionaries, ministers, etc are expected to obey any declaratory order, failing which an action to enforce the declaratory judgement may be instituted. According to Wade & Forsyth thus, in administrative law, the great merit of the declaration is that it is an efficient remedy against ultra vires action by any governmental authority including ministers, public servants and civil servants.

Also note that the remedy possesses a discretionary nature. Such discretion must however be exercised judicially and judiciously and with proper sense of responsibility. The burden of proof in establishing an entitlement to the remedy to the satisfaction of the Court however lies on the Claimant.

2. Injunction

Injunction is a readily available remedy in the private law field for preventing the commission of some unlawful act such as tort or breach of contract. However, in the public law field, it is a remedy available against a public authority to prevent the commission of unlawful acts. It is the province of the law that the res should not be destroyed before the judgement of the court. It is also a remedy of discretionary nature.

The remedy of injunction is dependent on the existence of a legal right. Thus, the remedy would not be made available to a litigant who does not have a legal right to the subject matter of the action. This was the contention of the Court in the case of AG Abia State v AG Federation.

The consideration for the grant of an injunction will also depend upon the type of injunction being sought from the court by the applicant. The types of injunction are stated as follows:

• Mandatory Injunction

This is granted by the court to compel a party to do a specific thing or action. As such, it is different from a prohibitory injunction which seeks to prevent someone from engaging in a particular act pending the determination of the case by judgement. A mandatory injunction will be granted where the damage or injury is so serious and material that the restoration of things to their former condition is the only method whereby justice can adequately be done.

• Perpetual injunction

It is described as an ancillary relief granted to protect an established right in law or in equity and where the substantive right has not been established, no injunctive relief would be granted. It is usually granted at the conclusion of the proceedings and the final determination of the merits of the case, as it prohibits the doing of the action specified in the judgement in perpetuity. Per Niki Tobi JCA in the case of Adeniran v Alao, the plaintiff must convince the Court that he is entitled to the grant of the remedy by establishing the merits of his claim.

• Interlocutory Injunction

This is usually granted upon application before judgement at any time in the course of the proceeding, to maintain the status quo pending the determination of the substantive suit. Per Niki Tobi JSC in the case of Shittu v Ebunolu, the applicant must show there is a serious question to be tried, that the balance of convenience is on his side, damages cannot be an adequate compensation, inter alia, for this form of injunction to be rendered by the Courts.

• Interim Injunction

An interim injunction is an injunction granted to last until a definite date or until further order is made or pending the hearing or determination of a motion on notice. The basic difference between an interim injunction and interlocutory injunction is that interim injunction is granted in cases of urgency and it is applied for by motion ex parte. Ex parte here means in the manner of a proceeding where one of the involved parties is not (or sometimes may not be) present.

• Ex Parte Injunction

An ex-parte order is a judicial proceeding or ruling that is based on argument one party only. It is done for, on behalf of, or on the application of one party only. A judicial proceeding, order, injunction and so on, can be said to be ex-parte when it is taken for granted at the instance and for the benefit of one party only, and without notice to or contestation by any person adversely affected by it. In Nigeria, there have been instances where ex-parte orders have been really problematic as was dealt with by the English case of Thomas Limited v Bullock.

In court cases, parties are entitled to notice and the opportunity to be heard. This is the basic concept behind due process, and everyone is entitled to it. The exception to this rule is in emergency situations. In cases where there is a possibility of immediate property destruction or extreme violence, a party can approach the court for an emergency protective order or restraining order, custody order, or an order preventing someone from destroying property. There are other situations where emergency orders are appropriate, but these above stated legal situation are the most common.

In a situation where getting an immediate order is urgent, a party can without notifying and serving the other party file an ex parte motion or application, if the judge grants the ex parte order, the order is only temporary as stated by Nnaemeka Agu JSC in Kotoye v CBN. The judge will hold a full hearing within a short period of time.

Although, an ex-parte order of injunction, is not intended to be a temporary victory to be used against the adverse party indefinitely. Rather, it is to last for a short period pending the determination of a motion on notice.

Damages

Damages has been described as being in its fundamental character compensatory, whether the matter complained of is a breach of contract or a tort; the primary theoretical notion is to place the plaintiff in as good a position, so far as money can do it, as if the matter complained of had now occurred. The principle envisaged that a party that has been injuriously affected by the act complained of must be put in position in which he would have been if he had not suffered the wrong for which he is being compensated.

See the case of Shugaba Darman v Minister of Internal Affairs where the applicant who suffered deportation sought amongst others, damages for assault, unlawful deportation and interference with his freedom of movement. The court held that interim seeking redress for any form of infringement of fundamental human rights, any person could claim any form of redress, including a declaratory order, injunction and damages.

There are three types of damages: General, Special and Exemplary damages. The injured party may want to claim as relief, any one or a combination of these types as long as the party furnishes evidence that will be sufficient for the type of damages claimed.

General damages has been defined as such damages that the Law will presume to be the direct, natural or provable consequence of the act complained of, or damages resulting from loss or harm suffered by the plaintiff, flowing naturally from the act of the defendant and which the plaintiff need not specifically set out in his pleadings. Except where Special damages are claimed, damages claimed in an application for the enforcement of fundamental rights are in the nature of general damages. See the case of EFCC v Odigie where a sum of #1,000,000 was awarded as general damages for wrongful arrest and detention by the trial court and affirmed on appeal.

Special damages on the other hand has been defined as that which is the actual, but not necessarily the result of injury or harm complained of, and which in fact, follows such injury or harm as a natural and proximate consequence in the particular case, that is, by reading of special circumstances or conditions. Per the case of Ahmed v CBN, for this form of damages to be claimed, it must be reasonably foreseeable and must be specially pleaded and strictly proved.

Exemplary damages often amount to double compensation to a party for the same loss because it is usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment, such as instances where malice, fraud inter alia are disclosed. It postulates a punishment for the defendant and not mere compensation for the Plaintiff. It must also be specially claimed for the Court to grant it.