Restitution
This remedy involves extracting of a benefit from a
defendant and reverting it to the plaintiff. It has its roots in the Latin
maxim ‘restitutio in integrum’
literally meaning restoration to the original position. It is founded on three
main principles namely1:
a) The
reversal of unjust enrichment.
b) The
prevention of a wrongdoer from profiting from his or her wrong; and
c) The
vindication of property rights with which the defendant has interfered.
These
principles are to be applied in separate and not applied as one general
principle.
The Moses v.
Macferlan2 case may be regarded as the basic source of law on
restitution. Also an example of the law of restitution appears in Reading v. Attorney-General3.
Here, Reading, an army officer, used his army uniform to assist himself in
smuggling of goods. The restitution award granted to the State was not
compensatory because it had not suffered any loss but it was a recovery of the
defendant’s unjust enrichment.
In appropriate scenarios, the plaintiff has the option
of suing in either tort or the law of unjust enrichment as seen in Attorney-General v. Blake.4
Restitution is especially applicable in the
following scenarios5:
·
Trespass to goods
·
Deceit
·
Trespass to land (i.e. taking of
minerals from one’s land)
·
Conversion or detinue.
Restitution awards come in two forms: i) in specie
ii) Substitutionary
i)
In specie
This
is a Latin phrase meaning ‘in its actual form’. In this case, the property
unjustly taken is returned in its exact original form.
ii)
Substitutionary
A
substitute to the item taken is offered to the plaintiff as compensation e.g.
money
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