Highlight three remedies available in civil action

Remedies available in a civil action.

  • Committal to civil jail

This is a short jail term where the judgment debtor has failed or refused to honour the decree.
The objective is to compel such person to retain his position and respect the court order.

  • Specific performance

This is a court order which compels the defendant to perform his part of the contract as agreed. It compels the defendant to fulfill his promise in accordance with the contract without an option to pay damages. It is an equitable remedy which manifests the maxim that equity acts in personam. The remedy may be availed where;

  • Monetary compensation is inadequate
  • The subject matter is unique or has peculiar characteristics, such as land
  • A contract is breached in anticipation.

 

  • Injunctions

This is a court order which either restrains a party from doing or continuing to do a particular thing or compels it to undo what it has wrongly done. An injunction may be prohibitory or mandatory.

A prohibitory injunction restrains a party from doing or continuing to do a particular thing while a mandatory injunction on the other hand compels a party to put right what it has wrongly done. It is restorative in nature.

 

Injunctions are either interim or temporal and perpetual or permanent. An injunction is an equitable remedy which may be granted in the following circumstances:-

  • If money cannot adequately compensate the plaintiff
  • If it is necessary to maintain the status quo i.e. maintaining things as they are

For an injunction to be granted the applicant must establish that:

  • He has a prima facie case with overwhelming chances of success
  • If the remedy is not granted he will suffer irreparable injury.

 

  • Rescission

The essence of this remedy is to restore the parties to the position they were before the contract.
It is an equitable remedy whose award is discretional.

The remedy may be availed whenever a contract is vitiated misrepresentation.
However the right to rescind a contract is lost in various ways: –

  • Delay: A contract cannot be rescinded if a party has slept on its right for too long as “delay defeats equity”. In Leaf V International Galleries Ltd., where the plaintiff purported to rescind a contract after 5 years, it was held that the remedy was not available on account of delay.
  • Affirmation: A party loses the right to rescind a contract if it expressly or implication accepts the contract.
  • Third party rights: A contract cannot be rescinded after 3rs party rights have arisen under it, as this would interferes with the rights of a person who was not privy to the original contract.
  • Restitution in integrum not possible: Rescission is not available if the parties cannot be restored to the position they were before the contract. E.g. if one of the parties is a company and it has gone into liquidation.

 

Quantum Meruit;- Literally means, as much as it is earned or deserved.

This is compensating a party on the basis of the proportion of work completed.
It is an equitable remedy available in the following circumstances.

 

  • Where a contract is divisible and the party was performed part of its obligations (Ritchie V Atkinson.
  • Where partial performance is accepted and the party has so performed
  • Where the contract does not specify the amount or sum payable.
  • Where the contract is substantially performed, the party that has performed is entitled to compensation for work done.
  • Where a party ready and willing to perform its part of the contract but is prevented from doing so the other.

 

 

Damages

It is a monetary compensation awarded to an aggrieved due to breach of legal injury sustained. It is not for every injury that a party shall be granted damages but only for those injuries which were a proximate consequence of the wrong complained of .. There are various kinds of damages including the following: general, nominal, punitive, exemplary, special, liquidated and unliquidated damages. Damages, as a remedy, will usually accompany other remedies.

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