INTRODUCTION
There are several equitable remedies such as declaration, Certiorari,
mandamus, specific performance, etc. However, for the purpose of this
piece, I will focus mainly on declarations. Where a claim of declaration
fails, it does not necessarily mean that the claim for injunction will fail too.
There has been a proliferation of law suits which are hinged on declaratory
orders especially those related to title to land. These actions have become
very common in our court, as a result of the persistent insecurity of title.
Declaratory orders are raised in almost all kinds of lawsuits where the court
is convinced that the person raising the issue has sufficient interest. The
interest here could be either ‘proprietary’ or ‘rights’ which have been
trespassed or infringed as the case may be.
The court in such cases do not just make declaratory orders but would
usually go on to award damages. This is to say that declaratory orders do
go alongside with ancillary reliefs which are coercive in nature. For
example, where a court makes a declaratory order giving title to land to
either party to a suit, it will as well go on to make an ancillary/coercive relief
to that party to further go on to take possession of the disputed lands.
A mere declaratory judgment with no form of ancillary relief or coercive
force is ambulatory in nature in the sense that it can later be executed by
the judgment creditor taking a further action to make the judgment
coercive. This was well illustrated in the case of CHUKE ARAH AKUNNIA
Vs. A-G, ANAMBRA STATE OF NIGERIA & ORS (1977) S.C. 161, where
the apex court per Idigbe, JSC observed that:
“The end result of an action, whatever its nature
and no matter how framed, is that the party who
approaches the court obtains the order he seeks;
the order h e seeks may be declaratory or
executor. It is executor where the order declares
the rights of the parties before the court and then
proceeds to enjoin the defendant to act in a
certain way. It is declaratory where it merely
proclaims the existence of a legal relationship,
but contains no specific order to be carried out
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by, or enforced against the defendant. In the
first class of order (executor) it is necessary to
have the assistance of the law enforcement
agencies to carry out the order, if the order of the
court is disregarded there is hardly any need for
this in the second class of order (declaratory).”
THE HISTORY OF DECLARATION
The Universal Declaration of Human Rights, which was adopted by the UN
General Assembly on 10 December 1948, was the result of the experience
of the Second World War. With the end of that war, and the creation of the
United Nations, at the war’s end, the international community vowed to
never again allow atrocities like those of that conflict to happen. World
leaders decided to complement the UN Charter with a road map to
guarantee the rights of every individual everywhere. The document they
considered, and which would later become the Universal Declaration of
Human Rights, was taken up at the first session of the General Assembly in
1946.
The Assembly reviewed this draft Declaration on Fundamental Human
Rights and Freedoms and transmitted it to the Economic and Social
Council "for reference to the Commission on Human Rights for
consideration . . . in its preparation of an international bill of rights." The
Commission, at its first session early in 1947, authorized its members to
formulate what it termed "a preliminary draft International Bill of Human
Rights". Later the work was taken over by a formal drafting committee,
consisting of members of the Commission from eight States, selected with
due regard for geographical distribution.
The Commission on Human Rights was made up of 18 members from
various political, cultural and religious backgrounds. Eleanor Roosevelt,
widow of American President Franklin D. Roosevelt, chaired the UDHR
drafting committee. With her were René Cassin of France, who composed
the first draft of the Declaration, the Committee Rapporteur Charles Malik
of Lebanon, Vice-Chairman Peng Chung Chang of China, and John
Humphrey of Canada, Director of the UN’s Human Rights Division, who
prepared the Declaration’s blueprint. But Mrs. Roosevelt was recognized as
the driving force for the Declaration’s adoption.
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The Commission met for the first time in 1947. In her memoirs, Eleanor
Roosevelt recalled:
Dr. Chang was a pluralist and held forth in charming fashion on the
proposition that there is more than one kind of ultimate reality. The
Declaration, he said, should reflect more than simply Western ideas and
Dr. Humphrey would have to be eclectic in his approach. His remark,
though addressed to Dr. Humphrey, was really directed at Dr. Malik, from
whom it drew a prompt retort as he expounded at some length the
philosophy of Thomas Aquinas.
The final draft by Cassin was handed to the Commission on Human Rights,
which was being held in Geneva. The draft declaration sent out to all UN
member States for comments became known as the Geneva draft.
The first draft of the Declaration was proposed in September 1948 with
over 50 Member States participating in the final drafting. By its resolution
217 A (III) of 10 th December 1948, the General Assembly, meeting in Paris,
adopted the Universal Declaration of Human Rights with eight nations
abstaining from the vote but none dissenting.
The entire text of the UDHR was composed in less than two years. At a
time when the world was divided into Eastern and Western blocks, finding a
common ground on what should make the essence of the document proved
to be a colossal task.
HISTORICL EVOLUTION OF DECLARATIONS
The historical evolution of declarations evolved from ancient tablets
announcing sovereign rights to modern international frameworks for human
dignity. Key milestones include the 539 BC Cyrus Cylinder, the 1215
Magna Carta, and 18th-century revolutionary declarations (1776 US, 1789
France). This culminated in the 1948 Universal Declaration of Human
Rights, which became the global cornerstone for individual freedoms.
KEY HISTORICAL MILESTONES OF DECLARATIONS
Ancient Foundations (539 BC): The Cyrus Cylinder, created by
Cyrus the Great, is often recognized as the first human rights
declaration, freeing slaves and declaring religious freedom.
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The Magna Carta (1215): English document limiting the king's power
and establishing rights.
17th–18th Century Rights Documents: The 1628 Petition of Right
and the 1776 US Declaration of Independence (declaring life, liberty,
and the pursuit of happiness).
The French Revolution (1789): The Declaration of the Rights of
Man and of the Citizen established that all citizens are equal under
the law.
The Universal Declaration of Human Rights (1948): Following
World War II and the Holocaust, the UN adopted this document on
December 10, 1948, as a global "road map" for fundamental
freedoms.
EVOLUTION OF FUNCTION
From Regional to Global: Early declarations applied to specific
states or groups; the 1948 UDHR is universal.
From Political Independence to Personal Rights: Early modern
declarations (e.g., USA) often focused on national sovereignty, while
later ones focus on individual entitlements and human dignity.
From State to Citizen: Modern declarations, such as the 1998
Declaration on Human Rights Defenders, shift the responsibility of
protecting rights from only states to enabling individuals and civil
society.
After the Judicature Act of 1873, the English Supreme court Rules of 1883
gave jurisdiction to Nigerian courts to grant declaratory orders. This power
was derived under Order 25 Rule 5 of the said Supreme Court Rules of
England which reads as follows:
“No action or proceedings shall be open to
objection, on the ground that a merely
declaratory judgment or order is sought
thereby, and the court may make binding
declarations of rights whether any
consequential relief is or could claim or not.”
Though, a lot of controversies arose as a result of the above rule as to
whether such declaratory orders passed by the courts were binding or not
without consequential reliefs.
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I would support the view of Bankes L. J. who in the case of GUARANTY
TRUST COMPANY OF NEW YORK Vs. HANNAY & COMPANY (1915) 2
43 536, observed that the purpose of Order 25 Rule 5 is to claim relief and
that the word “relief” must be given its fullest meaning without any
limitations excepts that the relief should not be unlawfully, inequitable or
contrary to the accepted principles upon which the court exercises its
jurisdiction. He further opined that the rule should be given a liberal
construction. (To be continued)
THOUGHTS FOR THE WEEK
“When the legislative and executive powers are united in the same person,
or in the same body of magistrates, there can be no liberty; because
apprehensions may arise, lest the same monarch or senate should enact
tyrannical laws, to execute them in a tyrannical manner”. – Montesquieu.