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UNIT EIGHT:

REMEDIES AND GOVERMENT (ADMINISTRATIVE)

LIABILITY
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Introduction
 In addition to the safeguards which control the power of the
government, administrative law also provides the remedies that
are available for unlawful and irregular administrative action.
 Remedies and rights have important correlation.
 Whenever rights are threatened or violated, people usually need
the intervention of the law.
 It is the law that provides appropriate remedies proactively, or
retrospectively.
 Administrative law is one of the most important laws that
regulate the relationship between the strong-armed
administrative bodies and week individuals.
 In addition to providing general principles and standards of
behavior regarding the administration, this law tries also to
devise mechanisms for rectifying administrative illegality.
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Remedies

 The term remedy in this context refers to the varieties of

awards/relieves that may be granted by the reviewing court
following an application for judicial review.
 As a general rule, where any of the grounds justifying judicial
review are there, a person complained against the agency
decision has to include in his or her application for judicial
review the type(s) of order or redress he or she sought
from the reviewing court.
 Thus, the relief that the applicant seeks from the reviewing court
is what we call remedy.
 For technical and historical reasons, remedies are broadly
classified into public law remedies and private law
remedies.
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Those included within the category of public law remedies

also known as prerogative orders are
 Certiorari (a quashing order),
 Prohibition (prohibiting order),
 Mandamus (mandatory order), and
 Habeas Corpus,

whereas private law remedies include

 injunction,
 declaration and
 Damages.
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Public Law Remedies

 The primary purpose of judicial supervision of the administration is
to restrain the latter from operating within the bounds of the law.
 In judicial review proceedings, the claimant always approaches the
court requesting a remedy.
 Public law or prerogative remedies of public law, in the English
tradition, have primarily been used to ensure whether or not the
government machinery operates properly.
 Due to this fact, it is said that these remedies are more liberally
granted than the private law remedies that are mainly concerned
with the enforcement of private rights.
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a. Certiorari (quashing order)

 The writ(order) of certiorari, also referred to as quashing

order, is a procedure through which the reviewing court
investigates the legality of an agency’s decision complained of,
and will quash or nullify where the decision in question is
found to be ultra vires.

 Normally, where certiorari is granted by the reviewing court,

the parties have to be returned to their original pre-decision
position.
 The Administrative Procedure Proclamation under Articles 56
(2) and 57 (1) indicates that after reviewing an administrative
action, the court may fully or partially reverse or invalidate the
administrative decision or a directive.
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b. Prohibition
 The prerogative order of prohibition, as its name implies,
performs the function of ordering a body amenable to it to
refrain from illegal action.
 It is an order issued by a higher court to prevent an inferior
tribunal or administrative authority from exceeding or from
continuing to exceed its authority, or from behaving ultra
virally while dealing on matters that affect the interest of the
complainant.
 The striking contrast between certiorari and prohibition is
that, while certiorari quashes what has been already done,
prohibtion restrains a government body from taking a certain
course of ultra vires action.
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 Thus, certiorari has retrospective effect - nullifying an already

made illegal or ultra vires act, whereas prohibition has a
prospective effect - it stops the continuity of an ongoing course
of action or restrains the execution of an already made decision
beforehand.
 Thus, while certiorari has nullifying effect, prohibition has
preventive effect.
 The applicant may, in appropriate cases, seek both certiorari
(quashing order) and prohibition (prohibiting order) in conjunction;
 For example, certiorari to quash the decision in question and
prohibition to prevent the execution of the nullified decision or the
taking of other particular action.
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C. Mandamus
 Mandamus (mandatory order) is the other important public law remedy that deals with
agency inaction.
 Certiorari and prohibition are concerned with control of the exercise of discretionary
powers, whereas the prerogative order of mandamus is designed to enforce the
performance by governmental bodies of their duties.
 Mandamus may also be used to compel the decision-maker to exercise his/her discretion
properly.
 Mandamus (a mandatory order is often applied for in conjunction with certiorari (a
quashing order).
 For example, where there has been a breach of the rules of natural justice, certiorari (a
quashing order) will quash the decision and mandamus (mandatory order) will compel a
rehearing.
 Article 57 of the Proclamation stipulates that where the
court renders a decision that partially or fully invalidates the administrative decision or
directive, it may also order the administrative agency to revise or reenact the directive
or reconsider its administrative decision by rectifying the shortcomings identified
 From the reading of this provision, one can understand
that after reviewing an administrative action one of the remedies that the court may
take is to remand the case to the lower body so that it can reconsider the matter in a
procedurally fair manner or any other manner it deems appropriate
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D. Habeas Corpus
 The writ of habeas corpus (produce the body) is used to obtain the
release of someone who has been unlawfully detained, e.g.,
wrongfully arrested.
 It is a procedure through which an illegally detained person applies
to the court requesting an order for his physical release.
 It serves as a modality for securing the liberty of a person by
affording an effective means of immediate release from unlawful or
unjustified detention.
 Habeas corpus referred to as the “Great Writ” in common law, has
traditionally maintained high reputation as a safeguard of personal
liberty.
 Currently, it is an attempt to measure up to the standards of human
rights and fundamental freedoms
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Habeas Corpus

 The writ of Habeas Corpus has received blessing in many jurisdictions,

and is being used as a vital instrument for protecting the fundamental
human rights of individuals to their liberty.
 FDRE Constitution Article 19 particularly deals with the right of arrested
persons stated that in its sub-Article 4 as follows: “All persons have an
inalienable right to petition the court to order their physical release
where the arresting police officer or the law enforcer fails to bring them
before a court within the prescribed time and to provide reasons for their
arrest….” Authorities assert that the public law remedies are privileges
that can be granted at the court’s discretion.
 This means that, unlike in the case of appeal, individuals, as of right,
cannot invoke judicial review.
 However, although the Writ of Habeas Corpus falls within the traditional
category of public law remedies, it is recognized under our constitution
as inalienable right conferred to all persons detained.
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Private (Ordinary) Law Remedies

 As stated earlier, the basis of the classification of the public law

and private law is mainly historical.
 According to Cane, the private law remedies are so-called
because they were originally used only in private law but later
came to be used in public law (Cane, p. 66).
 Many of these remedies, for example in England, are used in
conjunction or as alternatives to the other public law remedies.
 So, classification between private and public law remedies is
merely historical and technical.
 Technically speaking, prerogative remedies may be invoked by
an application for leave for judicial review but this is not the
case in most private law remedies.
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A. Injunction
 An injunction in the common law tradition is known as an equitable
remedy, which means that it is in the discretion of the court whether
or not to grant it.
 It is a court order, which in the majority of cases that orders the party
to whom it is addressed not to do a particular act.
 But broadly speaking, it can be negative (i.e., forbidding a decision-
maker from doing something), or mandatory (i.e., ordering a decision-
maker to do something).
 In public law, injunctions tend to be negative in nature, because
mandamus will normally be sought in order to compel a decision-
maker to carry out a duty
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Injunction
 Injunction can be granted in both public and private law as an
interim or final relief.
 An interim injunction (also referred to as interlocutory injunction)
is a provisional remedy that may be granted at the court’s
discretion at the interlocutory proceedings pending the hearing
of the case.
 Its purpose is to prevent a party from continuing the actions
complained of until a full hearing of the case.
 As a rule, an interim injunction has to be granted where there is
imminent danger of irreparable injury and damages would not be
an adequate remedy.
 There are also cases where injunction may be granted as a final
relief in public matters both in the positive and negative sense in
lieu of mandamus and prohibition, respectively.
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B. Declaration

 This is simply asking the court to make a ruling on what the law is. It is used
in both public and private laws and is available in wider circumstances than
the prerogative orders.
 It declares what the legal rights of the parties to the action are and differs
from other judicial remedies in that it declares the law without any sanction
and has no coercive effect.
 The reason for this is that it was always sought in conjunction with remedies,
which the court could enforce.
 Now in England, a declaration may be sought in public law case along with
one or more of the prerogative orders as well as with an injunction and/or an
award of damages.
 Although it is a private law remedy in its origin, declaration is now widely in
use as a remedy in both private and public law cases.
 Its main purpose is to determine or ascertain what the law says without
changing the legal position or rights of the parties. It declares what the law is
or says in relation to a certain uncontested fact.
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C. Damages
 In legal parlance, the term damages is usually used interchangeably with
the term compensation.
 The purpose of awarding damages in this context is to repair the pecuniary
or non-pecuniary harm inflicted upon the complainant because of
administrative wrongs.
 The worth mentioning point here is that damages may not be awarded to
the complainant on the mere ground that s/he has suffered some sort of
compensable injury due to the act of an administrative body, which is
found to be ultra vires in a judicial review.
 This means, the fact that an administrative action is successfully attacked
in judicial review does not necessarily entitle the victim of that act a right
to claim compensation.
 Damages are purely a private law remedy that can be claimed by the
victim of a wrongful act in accordance with the dicta of private law.
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 Damages can be filed before the reviewing court, but the granting
of the award depends on whether or not the decision rendered is
invalid on the grounds of the public law principles at the same time
constitutes a civil wrong in private law such as torts and contract
and whether or not the applicant suffers a compensable injury due
to such private wrong.
 `So the award of damages in judicial review is a matter of
coincidence.
 That is, when the grounds justifying judicial review at the same
time constitutes private wrongs, damages may be awarded to the
applicant provided that s/he proved a compensable injury caused
to her/his interest as per the governing private laws.
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Thank You!!!