The last time I decided to put my thoughts into writing and share them in the form of a humble opinion on this huge platform was the early parts of April, 2021. It is often said that “the soul and mind are willing, but the body is extremely weak”. I always wish to write epistles but I have had and enjoyed my own share of the frailty of man. In order to avoid getting lazy once again, let me quickly go straight to the point.
It is trite learning that Law, especially the Common law, has two major tentacles, that’s civil and criminal law. As Henrietta J.A.N Mensa-Bonsu succinctly captures it, “ [t]he rationale for categorizing wrongs into public law and private law is that whilst a civil wrong injures the rights of an individual or a group of individuals, a public wrong such as a crime injures the whole society. Thus infractions of the criminal law are a matter for the whole society and not the particular victim.” She eventually removes any doubts and proceeds to say that civil law “is primarily compensatory in nature, and therefore, it is the individual who has to take steps to bring the law into play.” When the right of an individual is violated, it is only the victim of the violation who has locus standi to seek redress in the court. Unlike in public law or criminal law matters whereby a state can suo motu institute an action against a party, here the victim has to seek redress himself. That is why Article 33(1) of the 1992 Constitution provides that if an individual realizes that his right “has been, or is being or is likely to be contravened in relation to him…that person may apply to the High Court for redress.” So in human right cases, as someone puts it, you are on your own. This compensation may come in the form of damages.
In order to have a better discussion, I wish to define one of the subject matters of this paper, that is “DAMAGES”. The 8th edition of the Black’s Law Dictionary gives a very brief definition of the term. It defines it as “relating to monetary compensation paid by a defendant for loss or injury to a person or property. [It is paid to the victim of the said injury]” (emphasis added). Damages come in several kinds, namely; Compensatory damages, Actual damages, Consequential damages, etc. However, for the purpose of this paper, I wish to elaborate just two out of the several kinds of damages. Per the dictionary cited supra, Actual damages is an amount awarded to a complainant to compensate for a proven injury or loss: damages that repay actual loss. Consequential damages is awarded for losses that do not flow directly and immediately from an injurious act but that result indirectly from the act. Every student of the Law of Torts knows that the former relates to trespass to the person and later to trespass to the case. The main purpose for awarding damages is to compensate an injured party to a lis. For instance in the case of R v. Cotesworth, the plaintiff sued the defendant for spitting into his face. The court awarded damages to the plaintiff to serve as a compensation to him.
I can proclaim without any fear of contradiction that Human rights as a doctrine inherent to every modern democracy forms the most pertinent moiety of Ghana’s 1992 Constitution. After all, a whole chapter was dedicated to Human rights and the chapter on Human rights is made up of 23 Articles. Again, 19 out of the 190 pages (that’s 10%) of which the entire constitution is made up were apportioned to Human rights. No subject or doctrine other than Human rights received such an enormous recognition under the 1992 constitution. Amongst the total number of cases decided by the Superior courts, Human right related cases form a substantial percentage of them.
Prof. Raymond Atuguba, after realizing the incomparable significance of Human rights vis a vis the 1992 constitution and Ghana’s legal system as whole, deposed in his policy analysis publication on Institute of Economic Affairs (IEA) that “[f]or a long time we have refused as a nation to acknowledge that this country has chosen a Rights-Based Approach (RBA) to development…. Anyone who wishes to quarrel with this has only two options: amend the constitution…or emigrate from Ghana.” Usually, damages as a remedy arises when there is a breach of contract or duty of care. It is normally awarded to the plaintiff as a result of an injury he or she sustained by virtue of the actions of the defendant. I can’t proceed without quoting Lord Scarman’s famous expression in Lim vrs. Camden Health Authority “…the principle of the law is that compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong.”
In the Ghanaian legal setting prior to the year 2000, mention was barely made of damages or compensation while the courts were dealing with the issues of Human right violations. Let me use the case of NPP v. The Inspector General of Police [1993-94] as an example. After the court declared that the withdrawal of the permit which initially allowed the plaintiffs to demonstrate was in violation of the plaintiffs’ Human rights, it ordered that Sections 7, 8, 12(a) and 13(a) of the Public Order Decree, 1972 (NRCD 68) were in contravention of article 21 (1)(d) of the Constitution, 1992 and were therefore unconstitutional, void and unenforceable. The court did not order that the defendant, that’s the IGP, should pay any form of damages to the Plaintiffs for violating their constitutionally guaranteed Human rights. Again, if you claim in court, for instance, that your right to vote has been violated, the possible relief you can seek from the court is to protect that right by allowing you to vote. You will barely claim for damages. However, if someone kidnaps another and keeps him in custody for weeks, the right to movement and personal liberty of the latter has been breached by the former. In this case, the person who got kidnapped will not get much when he takes the Human rights route. He can independently bring an action in tort against the kidnapper for false imprisonment. When the action goes in his favour, he will then be entitled to compensation in the form of damages. If he sues the person for Human rights violation, he will barely be compensated even if the court rules in his favour.
It must be noted that at common law, damages is not automatically available for victims of an injury caused by a public body or official even when the courts rule that their Human rights have been violated. In De Smith, Woolf and Jowell’s Principles of Judicial Review (1999) at page 609, it was established that “[a] fundamental tenet of English law is that the failure of a public body to act in accordance with public law principles of itself gives no entitlement at common law to compensation for any loss suffered. Nor does the careless performance of a statutory duty in itself give rise to any cause of action in the absence of a common law duty of care in negligence or a right of action for breach of statutory duty. To recover damages, a recognised cause of action in tort must be pleaded and proved.” So it is clear from the above common law position that Ghana was not the only jurisdiction which was not awarding damages to plaintiffs whose rights are violated, especially by administrative bodies.
The crux or center of this paper is the decision in the case of Marian Awuni v. West Africa Examination Council, which is a locus classicus of Human Rights under the Ghanaian legal system. It served as a great game changer. Since it is a possibility that some readers have not taken cognizance of the decision mentioned above, I wish to briefly outline the facts of the case here.
Daniel Awuni was an 18 year old Secondary school student. Suing through his next friend, he brought a lis in the High Court against WAEC on behalf of himself and twelve other colleagues of his. His case simply was that while waiting for his 2000 SSCE results, WAEC communicated to him via the headmaster of his school, Notre Dame Seminary-Secondary School, that he and his other 12 colleagues engaged in examination malpractices and because of that their papers were canceled and they will not be allowed to write any examinations under the auspices of WAEC for the next three years. His whole argument was that they ought to have been allowed to tell their side of the story before they could be sanctioned by WAEC. And since WAEC failed to do that it breached their right to administrative justice guaranteed under Article 23(1) of the 1992 constitution. The court held that WAEC “is an administrative body and, as such, it is also subject to the provisions of article 23”, thus they violated the plaintiff’s right to administrative justice by not giving him (the plaintiff) and his colleagues a fair and reasonable hearing.
After the court unanimously decided that West African Examination Council acted ultra vires of the plaintiff’s right to administrative justice, the justices of the Supreme court were divided in both decision and opinion in relation to the question of whether or not Daniel Awuni, the real appellant, and his twelve other colleagues are entitled to damages. Four out of the five judges who decided the case held that the appellant and his colleagues are entitled to damages. Dr. Twum JSC is the only judge who held that the appellants are not entitled to damages. All the judges who held that the appellant and his colleagues were entitled to damages because their right to administrative justice had been violated based their decisions on the ratio decidendi of the case of Maharaj vrs. Attorney-General of Trinidad and Tobago. In order not to misunderstand the decision reached by the concurring judges lets appreciate the case which is stated above.
In the Maharaj case, the appellant was a barrister engaged in a case in the High Court in Trinidad and Tobago. He was committed to prison for seven days on the order of the judge for contempt. He applied by motion to the High Court under section 6 of the Trinidad and Tobago Constitution claiming redress for the contravention of his right protected under the Constitution not to be deprived of his liberty save by due process of law. He appealed to the Court of Appeal, when the High Court dismissed his motion. He further appealed to the Privy Council when the Court of Appeal upheld the High Court’s dismissal. The privy council in allowing his appeal held that “at the time the appellant brought that action, he was still in prison. His right not to be deprived of his liberty except by due process of law was still being contravened. And at the time the case reached the Court of Appeal he had long ago served his seven days and had been released. The contravention was in the past; the only practicable form of redress was monetary compensation.”
Kpegah JSC when comparing the facts in the Awuni case to that of the Maharaj case said that “in the case before us we are similarly dealing with a contravention which is now in the past. The appellants have been frustrated in planning their future in the academic field and entire life for the past four years not only as a result of the unlawful suspension of their entire results but also their illegal barring from taking any examinations under the auspices of the council for three years. I find intolerable and unconscionable the situation the appellants went through by the decision of the council; especially when under their own regulations they are not entitled to withhold the entire results of the appellants and in addition bar them for three years.” The reason given by Kpegah JSC for his decision is very clear. It would have settled the matter in an extremely simple manner. What made it very complicated was the reason of Dr. Date-Bah JSC, for awarding the damages to the appellant and his colleagues.
The learned judge’s (Dr. Date-Bah) contention, confusion and intricacies were basically about the question of “if damages is to be awarded, how should it be assessed? Actual or consequential damages or what other form of damages?” In making his state of dilemma known, he said “In any case, in the Maharaj case the facts lent themselves to an easy quantification of damages. It is analogous to the tort of false imprisonment and therefore the established methods of quantifying damages for that tort can be borrowed. It is much more difficult to quantify the damages caused by unlawful administrative conduct as in the instant case, [of a failure to apply a fair procedure.]”(Emphasis added). How do we measure what should be awarded as damages? Hypothetically speaking, if A strikes B with a stick and as a result B is injured and B seeks medical attention, measuring the damages A has to pay to B will be simple. The medical or hospital bills will simply be assessed and it will accordingly guide the courts to establish the amount to be awarded as damages.
The principle of the law is that “compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong” is much more difficult to apply where a plaintiff’s loss is that of a constitutional right. What is the level of monetary payment that can return him or her to the status quo ante.
Per Dr. Date-Bah JSC, (as he then was) the damages that are awarded for breach of a constitutional right under chapter five of the Constitution in cases where no actual damage is proved are damages which are “at large”. In the case of Cassell & Co Ltd vrs. Broome “damages at large” was described as “where awards of damages may include elements for loss of reputation, injured feelings, bad or good conduct by either party, or punishment, and where in consequence no precise limit can be set in extent…the award is not limited to the pecuniary loss that can be specifically proved.”
Finally, in awarding the damages to the appellants Dr.Date-Bah JSC deposed that “for more than three years the appellant and his fellow students have endured the loss of their constitutional right under article 23. This loss of their right has already happened and it is irretrievable…It may be that the award of damages may not be necessary where an offending decision is quickly set aside. But where, as here, an aggrieved person has had to bear the consequences of an offending decision for a considerable period, the award of damages, pursuant to the High Court’s power under article 33(1), is justifiable.” He further said the award and assessment of such damages which is at large should be at the discretion of the court. Pursuant to the above ratio, the court awarded 5 million cedis to each of the aggrieved persons. WAEC as an institution was to pay this amount to the plaintiff and his colleagues.
POSSIBLE CONSEQUENCES OF THE PRECEDENT SET BY THE SUPREME COURT IN THE AWUNI CASE.
As was rightly admonished by Kpegah JSC, “I must, however, caution that this should be limited to its own facts since it is not intended to represent any general principle regulating a court’s discretion which will open the floodgates for the award of all types of damages in public law proceedings.” Most of the entities which usually violate individual Human rights are public agencies like the Police service, Ghana Armed forces, Ghana Revenue Authority and many more. When these agencies are to pay such huge amounts of money as damages after a court adjudges that it has violated the right of an individual, such amounts (damages) will be drawn from the public purse like the consolidated fund. If the courts indiscriminately award damages to any person whose right is violated by these public agencies, it will not be economically viable for the state.
Dr. Date-Bah JSC puts it more clearly. He stated that “If damages were to be awarded each time that the High Court found administrative action unlawful and exercised judicial review over it, this would raise the cost of government and public administration. This is an issue of policy that needs to be borne in mind. The quashing of a decision or the prohibition of a public official from a particular course of action may be sufficient to meet the ends of justice, without the need to award damages” He concluded with these powerful and witty words, “whilst damages may serve the purpose of compensating the victims of unlawful administrative action, they may not necessarily serve to deter such unlawful action, since the damages will be paid from public coffers and not from the personal funds of the officials concerned.”
Ghanaian courts, like the English Common Law courts, made it legally traditional that violations of human rights, when brought to court as a constitutional law, administrative law or human right case, did not automatically attract the award of damages. But this position has been changed by the 2003 Supreme Court decision in the case of Marian Awnui v. West African Examination Council. Now, when Ghanaian courts come to a conclusion that the rights of an individual has already been violated and the victim has suffered or is still suffering the repercussions of the human violations, the best way to serve obvious justice is to compensate the victim by awarding damages to him or her.
I can’t draw the curtains without acknowledging my good friend Emmanuel Boateng, for helping me to review this work. Emma, I really appreciate.
This is the end of our journey. I hope you enjoyed the ride.