By Evarist Baimu Nyaga Mawalla - Home

compulsorily on payment of .compensation .This is part of the statute law ofvirtually every civilized country.An attempt by the executive, or, under a written Constitution, by the legislature, toacquire compulsorily land without compensation is unlawful, and, if the applicant’scase in Jaundoo v. Attorney-General of Guyana[1971] A.C. 972 were established, theact of the executive in doing so, whether or not under the purported authority of a n act ofthe legislature contravening the Constitution, would, in the case of a written Constitutionon the models we are discussing ,be a trespass, giving a right to damages at commonlaws. at the time of there appeal the lawfulness of the acquisition was not determined andthe case was therefore remitted of the court of first instance of determine of merits.A necessary consequence of the merits being determined in the applicant’s favour wouldhave been a right of action for damages against the executive for trespass, that is in anordinary action of tort. Since the constitution provide what is intended as a speedyremedy by way of notice of motions, it was so far as I can see, wholly appropriate for theboard to order compensatory damages as part of the redress in the event of the meritsbeing determined in favour of the applicant.In my view it is quite another thing to contend that a section of essentially a proceduralcharacter which embraces the possibility of damages where damages have always beendue [e.g where a trespass has been committed]confers aright of damages against the statefor judicial error where damages have ever been available, and even if available, have notbeen available against the state.I am, of course, not to be understood as suggestion that a notice of motion under section 6was in appropriate procedure in so far as its privy council. It was not as beneficial to theappellant, as the appeal to privy council ultimately proved. As the privy council asJurisdiction to declare (as the High Court probably would not have had) not merely thatthe appellant had been deprived of due process, but that he was actually innocent of thecharge.I am simply say that, on the view I take, the expression “redress” in subsection (1) ofsection 6, and the expression “enforcement” in subsection (2), although capable ofembracing damages where damages are available as part of the legal consequences ofcontravention, do not confer, and are not in the context capable of being construed so asto confer, are right of damages where they have not hitherto being available, in this caseagainst the state for the judiciary errors of a judge.This, in my view, must be so even though the judge has being acted as the committingjudge was held to have done in the instant case. Such a right to the damages has neverexisted either against the judge or against the state and is not, my option, conferred bysection 6.The third point I make on the majority construction of section 6 is that, in my view atleast, it proved too much both parties, and, as I understood it, the majority in their29