RESTITUTION AS A REMEDY IN TORT



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






1.       The Principles of the Law of restitution (ed. 2), Virgo G. pg. 7
2.       [1776] 2 Burr 1005, 1012; 97 ER 976, 981
3.       [1951] AC 507
4.       [2001] 1 AC 268, at 280 per Lord Nicholls
5.       Street On Torts (ed.12) Murphy J. pg. 661

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