Fundamental human rights and remedy for possible breach (1)

IT is a settled principle of law that where there is a right, there must be a remedy for the breach of the right, ibi jus ibi remedim. The application to this principle of the breach of human rights, guaranteed under the 1999 Constitution is more apt because rights are basic and fundamental.

Accordingly, Section 46 of the 1999 Constitution as amended provides, ”any person who alleges that any of the provisions of this chapter has been, is being or is likely to be contravened in any state in relation to him may apply to a High Court in the State for redress”.

It should be noted that the above provision envisages three stages at which redress could be sought.

The first stage is after the infringement, the second is during the infringement while the third is before the infringement.

Let us take the Right to Personal Liberty as an example. A person seeking redress for breach of his right to personal liberty at the first stage above will naturally allege that his/her personal liberty has been unjustifiably curtailed in the past, either in terms of baseless arrest or detention for a period longer than stipulated by the constitution. This first stage envisages that the contravention on infringement has seized, so the usual remedy is damages. Damages in law, is an award of monetary compensation for a wrong, suffered by one party in the hand of or at the instance of another party.

Three broad categories of damages are recognized in law, namely; general damages, special damages and aggravated or exemplary damages.

For general damages, its award is quantified by what, in the opinion of a reasonable person is considered adequate loss or inconvenience which flows naturally or generally presumed by law from the act of the defendant. See the case of Rockonor Property Company Ltd v NITEL PLC (2001) 14 NWLR (Pt 733) pg 468.

To succeed in the claim for general damages, the applicant or claimant is not required to plead and prove anything, all that is required of the applicant is to set out the facts which constitute the infringement and then claim whatever amount that pleases him, it is then left to the court to critically look at the facts stated by the applicant, draw inference of the loss, inconvenience, discomfort or indignity that could have been occasioned by the breach and award damages that the court deem sufficient to compensate the victim.

Special damages are awarded to compensate for pecuniary loss suffered by the applicant. For instance, where the detention of applicant exposed the applicant to health hazard causing him to incur some expenses for his treatment, general damages will be awarded. In addition to general damages the court might have awarded, the applicant will still be entitled to special damages for the cost of treatment incurred.

To succeed however, the applicant must itemise the pecuniary loss and prove it to the satisfaction of the court. Here, hard evidence is required. An example of the required evidence could be making available the result of the laboratory test showing the nature of sickness and implying that such sickness could be occasioned by the detention. This, coming along with the medical bills or receipts from the hospital will be helpful.

In the trespass case of Oyedeji v Adenle (1998) 9 NWLR (part 316) 224, the court held that a claimant for special damages for economic trees destroyed by a trespasser is required to established by evidence, the quality and type of the economic trees destroyed in order to enable the court assess the special damages claimed.

The third category of damages is aggravated damages sometimes referred to as exemplary damages. This is usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. Before aggravated damages can be awarded, this must be claimed and pleaded. See Odogwu v AGF (1996) 6 NWLR (pt 456) pg 510.

One of the earliest cases in Nigeria in which damages was awarded for breach of fundamental rights is the case of Minster of Internal Affairs v Shugaba (1982) 3 NCLR. In that celebrated case, the applicant, a Majority Leader in the Borno State House of Assembly in the Second Republic, being a member of the Great Nigerian People’s Party (GNPP), was unlawfully deported by the Federal Government on the grounds that he was not a Nigerian. He sought, inter alia (among other things), a declaration that he was a Nigerian citizen and as such has a fundamental right of immunity from expulsion from Nigeria.    The court, in addition to setting aside the deportation order as unconstitutional, the applicant was awarded a princely sum against the respondent, for the violation of the right to the freedom of movement of the applicant.

Since that case, the courts have embraced the practice of awarding damages for breach of fundamental rights.

Another remedy available to applicants in cases where the infringement has already been committed is the remedy of apology. The court may order the respondent to publicly apologise to the applicant in a special manner such as publishing the apology in one or two national dailies within a specified period of time. This remedy may be awarded whether or not the applicant specially prays the court for it and the remedy can be enforced by a contempt charge against the party to whom is directed, if it is not obeyed.

The justification for this lies in the fact that sometimes, the respondent who infringes the right of the applicant may be acting out of ego to deliberately infringe the right of the applicant believing that he will go scot-free. In such a situation, it is reasonable for the court to order an apology to the applicant in addition to whatever sum of money already awarded the applicant so as to deflate the ego of the respondent, which pushed him to contravene the right of the applicant.

Similarly, an order of apology to the applicant will shore up the ego of the applicant if the infringement of his right was done in a manner humiliating or embarrassing to him.

In Minister of Internal Affairs v Shugaba (supra), because the applicant himself was a well-known politician and public attention had been drawn to his deportation, the court ordered the respondent to publicly apologise to the applicant in addition to the damages already awarded against the respondent.

http://ngrguardiannews.com/law/121621-fundamental-human-rights-and-remedy-for-possible-breach-1

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