LAW OF TORTS

Definition of Tort

The word “tort” is derived from the Latin word “tortus” which means “twisted”. In legal context however, “tort” is a legal wrong for which the law provides a remedy.

Different scholars have attempted to define the law of tort, but a glance at all the leading textbooks on the subject will quickly reveal that it is extremely difficult to arrive at a satisfactory, all embracing definition. Each writer has a different formulation and each states that the definition is unsatisfactory.

According to Winfield; “tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”

Similarly, Professor Sir John. W. Salmond defined tort as; “a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.”

On the other hand, Kodilinye defined tort as; “a civil wrong involving a breach of duty fixed by the law, such duty being owed to persons generally and its breach being redressable primarily by an action for damages.”

In light of the foregoing definitions, it suffices to say that, tort is a breach of a civil duty imposed by law and owed towards all persons, the breach of which is usually redressed by an award of unliquidated damages, injunction, or other appropriate civil remedy. In other words, a tort is a breach of a civil duty imposed by law, which remedy is unliquidated damages, injunction, or other appropriate remedy. A tort is a civil wrong that is not exclusively a breach of contract, and which is usually compensated by an award of unliquidated damages, injunction or other appropriate remedy. Thus, tort is the breach of a civil duty imposed by law towards all persons, the remedy of which is mainly monetary compensation, injunction or other appropriate civil remedy.

THE PURPOSE OF THE LAW OF TORT

As a part of civil law, the purpose of the law of tort is to prohibit a person from doing wrong to another person, and where a wrong is done, to afford the injured party, right of action in civil law, for compensation, or other remedy, such as an injunction directing the wrongdoer who is known as a tortfeasor to stop doing the act specified in the court order and so forth. Damages is the monetary compensation that is paid by a defendant to a plaintiff for the wrong the defendant has done to him.

The essential aim of the law of torts is to compensate persons harmed by the wrongful conduct of others. The substantive law of torts consists of the rules and principles which have been developed to determine when the law will and when it will not grant redress for damage suffered. Such damage takes several different forms such as physical injury to persons; physical damage to property; injury to reputation; and damage to economic interests. The law of torts requires every person not to cause harm to others in certain situations, and if harm is caused, the victim is entitled to sue the wrongdoer for damages by way of compensation.

Monetary damages are the normal remedy for a tort. But there is another important remedy, the injunction, which is a court order forbidding the defendant from doing or continuing to do a wrongful act. Whether the plaintiff is claiming damages or an injunction, he must first prove that the defendant has committed a tort, for the law of torts does not cover every type of harm caused by one person to another.

OBJECTIVES OF TORT LAW

  1. Compensation: The most obvious objective of tort is to provide a channel for compensating victims of injury and loss. Tort is the means whereby issues of liability can be decided and compensation assessed and awarded.
  2. Protection of interests: The law of tort protects a person’s interests in land and other property, in his or her reputation, and in his or her bodily integrity. Various torts have been developed for these purposes. For example, the tort of nuisance protects a person’s use or enjoyment of land, the tort of defamation protects his or her reputation, and the tort of negligence protects the breaches of more general duties owed to that person.
  3. Deterrence: It has been suggested that the rules of tort have a deterrent effect, encouraging people to take fewer risks and to conduct their activities more carefully, mindful of their possible effects on other people and their property. This effect is reflected in the greater awareness of the need for risk management by manufacturers, employers, health providers and others. This is encouraged by insurance companies.
  4. Retribution: An element of retribution may be present in the tort system. People who have been harmed are sometimes anxious to have a day in court in order to see the perpetrator of their suffering squirming under cross-examination. This is probably a more important factor in libel actions and intentional torts than in personal injury claims which are paid for by insurance companies. In any event, most cases are settled out of court and the only satisfaction to the claimant lies in the knowledge that the defendant will have been caused considerable inconvenience and possible expense.
  5. Vindication: Tort provides the means whereby a person who regards himself or herself as innocent in a dispute can be vindicated by being declared publicly to be ‘in the right’ by a court. However, again it must be noted that many cases never actually come before a court and the opportunity for satisfaction does not arise.
  6. Loss distribution: Tort is frequently recognized, rather simplistically, as a vehicle for distributing losses suffered as a result of wrongful activities. In this context loss means the cost of compensating for harm suffered. This means redistribution of the cost from the claimant who has been injured to the defendant, or in most cases the defendant’s insurance company. Ultimately, everyone paying insurance or buying goods at a higher price to cover insurance payments will bear the cost. The process is not easily undertaken and it involves considerable administrative expenses which are reflected in the cost of the tort system itself.
  7. Punishment of wrongful conduct: Although this is one of the main functions of criminal law, it may also play a small part in the law of tort, as there is a certain symbolic moral value in requiring the wrongdoer to pay the victim. However, this aspect has become less valuable with the introduction of insurance.

Tort and Contract

Tort is a breach of a duty imposed by law. In many instances, the parties in a tort are previously unconnected. There is often no privity of contract. Tort is concerned with protecting interests and compensating wrongs, injuries or damage. Liability in tort is often based on fault or occurrence of damage. It is also concerned with unsafe products. Liability is determined by the remoteness of damage based on foresight of the type of harm. Tort aims to restore a plaintiff to his pre-accident or pre-wrong position. Limitation of time runs from the date the wrong or damage occurred.

Meanwhile, a contract is a binding agreement between two or more persons. The main distinction between tort and contract is that in tort the duties of the parties are primarily fixed by law, whereas in contract they are fixed by the parties themselves.

Also, the duties owed by two contracting parties towards another are frequently not duties which they expressly agreed upon but obligations which the law applies.

Conversely, some duties in tort can be varied by agreement, for example, the duties owed by the occupier of premises to his visitors; and liability in tort can be excluded altogether by consent (the doctrine of volenti non fit injuria.

When a wrong arises exclusively from a breach of agreement between parties, then the wrong is not a tort but a breach of contract, or trust, or other legal or equitable obligation as the case may be. On the other hand, if the relationship of the plaintiff and the defendant is such that a duty of care arises irrespective of contract and a wrong is done, and the defendant is negligent, then the wrong is often a tort even though it may also be a crime. In other words, if the law imposes a duty on a person to take care, so that his conduct does not injure his neighbour, if the person fails to exercise reasonable care, the wrong that may result is often a tort, even though it may also be a crime or other civil wrong.

This, in Kelly V. Metropolitan Railway Co. (1895) 1 Q.B. 944 CA., the plaintiff sued the defendant railway company for personal injuries he suffered due to the negligence of the servants of the company while he was traveling on the railway. The court held that the case was founded upon tort and not contract, although the tort occurred as a result of a contract to carry him as a passenger.

In Jackson V. Mayfair Window Cleaning Co. Ltd. (1952) 1 ALL ER 215, the plaintiff house owner contracted the defendant company to clean his house. In the course of cleaning a chandelier, it fell from the ceiling and was damaged. In an action for negligence for its damage, the court held that the company had failed to exercise reasonable care in the cleaning of the chandelier and gave judgment in favour of the plaintiff. The cause of action was not the failure of the company to perform the contract to clean the house, but it arose out of the breach of duty to exercise reasonable care to keep the plaintiff’s properties safe. The plaintiff’s claim was founded on tort and not on contract.

On the other hand, where a damage is purely contractual, then any breach of agreement between the parties can only be remedied by a claim for breach of contract. This view was affirmed by the Supreme Court in Quo Vadis Hotel Ltd V. Nigeria Marine Services Ltd.(1992) 6 NWLR Pt. 250, p.653 at p.664 SC.

However, there are some areas of overlap between contract and tort. For instance, a victim of fraudulent misrepresentation in contract may sue for the tort of deceit, and a victim of negligent misrepresentation may sue for the tort of negligence.

Also, there are some concepts which are common to both contract and tort, for example, the concepts of remoteness of damage and agency. The main object of legal proceedings in both contract and tort is damages.

Tort and Trust

Tort and trust are civil laws. A trust arises in any situation where one or more persons hold property for the benefit of another person or objects. However, there is little or no difference between the legal rights and liabilities of tort and trust. The only real difference is mainly that of history; that the law of tort arose or developed from common law, whilst the law of trust grew from the doctrine of equity in the Court of Chancery.

In other words, the remedies of tort are mainly based on law, whilst the remedies of trust were originally equitable and discretionary, although many remedies are now legal or statutory. Both laws of tort and trust have since then been developed by statutory enactments.

 

Tort and Crime

The main purpose of criminal law is to protect the interests of the public at large by punishing those found guilty of crimes, generally by means of imprisonment or fines and it is those types of conduct which are most detrimental to society and to the public welfare which are treated as criminal. A conviction for a crime is obtained by means of a criminal prosecution, which is usually instituted by the State through the agency of the police.

A tort on the other hand, is a purely civil wrong which gives rise to civil proceedings, the purpose of such proceedings being not to punish wrongdoers for the protection of the public at large, but to give the individual plaintiff compensation for the damage which he has suffered as a result of the defendant’s wrongful conduct.

Another important difference between tort and crime in Nigeria is that the entire criminal law has been codified in the form of the Criminal Code of Southern Nigeria and the Penal Code of the Northern states, whereas the law of torts remains a creature of judicial precedent modified here and there by statute.

Also an important distinction between tort and crime is that, to succeed in a criminal trial, the prosecution must prove its case beyond reasonable doubt. The same does not exist in civil actions because in an action in tort the plaintiff need only prove his case upon a balance of probabilities. However, where a tort is also a crime, the criminal standard of proof is under the Evidence Act is what is also required in the civil trial.

However, some torts, particularly trespass, have strong historical connections with the criminal law. So the same act may be both a tort and a crime, for example, assault, false imprisonment and defamation are both torts and crimes ( See sections 252, 365, 373-381 of the Criminal Code and sections 263, 264 and 391 of the Penal Code).

The Rule in Smith v. Selwyn

The common law rule in Smith v. Selwyn states that where a civil wrong is also a crime, prosecution of the criminal aspect must be initiated, or reasons for default of prosecution given, before any action filed by the plaintiff can be heard. Thus, it was the position that where a tort was also a crime, the filing of criminal proceedings against the wrongdoer, preceded the filing of a civil suit by the aggrieved party. This is known as the rule in

Smith v. Selwyn. When the rule in Smith v. Selwyn was not observed, the civil action by the plaintiff could not proceed and it was bound to fail as long as the defendant had not been prosecuted or a reasonable excuse given for the lack of prosecution.

Exception to the Rule in Smith v. Selwyn

The right of an aggrieved party to sue in tort is not affected, once the matter was reported to the police and the police in the exercise of their discretion decide not to press criminal charges.

This was the situation in Nwankwa v. Ajaegbu (1978) 2 LRN 230, where the plaintiff reported an assault. The police did not bring criminal proceedings. The plaintiff then brought civil action claiming damages for assault and battery. The defence contended that the civil action could not proceed as criminal charges had not been filed by the police. The court held that the civil action was not caught by the rule in Smith v. Selwyn which required that where a case discloses a felony, the civil action should be stayed until criminal proceedings were concluded. The plaintiff having reported the assault to the police, whose duty it was to prosecute, if the police in their discretion failed to press charges, it was not the fault of the plaintiff. He was free to initiate civil proceedings for remedy.

 

 

 

Abolition of the rule in Smith v. Selwyn

The rule in Smith v. Selwyn which has been abolished in Britain is also no longer applicable in Nigeria.

The applicability of the rule in Smith v. Selwyn in Nigeria was considered by the Court of Appeal in the case of Veritas Insurance Co. Ltd. V. Citi Trust Investments Ltd. (1993) 3 NWLR Pt. 281, P. 349 at 365 CA. where it held that in view of the provisions of the Nigerian Constitution, Criminal Code Act and the Interpretation Act, the rule no longer applies in Nigeria.

Tort can be classified into the following:

  1. Personal Interests
  2. Interference with judicial process
  3. Property interests
  4. Interest in reputation
  5. Economic interests
  6. Interference with relationships; and
  7. Miscellaneous interest

Torts Protecting Personal Interests

The torts that protect a person, or prohibit trespass to person include the torts of trespass, such as, assault, battery, false imprisonment, malicious prosecution, the Rule in Rylands V. Fletcher, negligence, occupier’s liability, etc. These torts are concerned with protecting a person from being injured in the body. They also protect the freedom, liberty and dignity of a person from being denied by way of arrest, false imprisonment, etc.

Torts Prohibiting Interference with Judicial Process

The torts that prohibit interference with judicial process include malicious prosecution. This tort aims to protect persons against criminal prosecution without lawful excuse.

Torts Protecting Property Interests

The torts that protect interests in property include trespass to chattel, trespass to land, nuisance, the Rule in Rylands V. Fletcher, negligence and interests in intellectual property, such as, copyright, passing off, injurious falsehood, patents, trademark, etc. These torts protect the proprietary interests of a person.

Torts Protecting Interests in Reputation

The tort that protects the reputation of a person is the tort of defamation. The law of defamation which is divided into libel and slander protects a person’s right to his good reputation. It deals with wrongs to reputation. Defamation is also a crime. In criminal law, defamation consists of slander and libel. However, if a person does not have a good reputation, then there is nothing for the law to protect as the case may be.

Torts Protecting Economic Interests

The torts which protect economic interests include; vicarious liability, deceit, passing off, interference with contractual relations and inducing breach of contract, malicious or injurious falsehood, conspiracy, intimidation, occupier’s liability, etc. These torts protect the economic interests of a person, such as economic relations and trading interests. They protect the right of a person to be free from financial or economic harm.

Torts Prohibiting Interference with Relationships

The torts which protect relationship between one person and another person include, interference with contractual relations, enticement and harbouring, etc. On the other hand, the law of tort cares about economic and contractual relationships. For instance, the law of tort protects one contracting party from being denied the service of the other contracting party through inducement by a third party to break the agreement. See the case of Lumley V. Gye (1853) 118 ER 749, 1083 and British Motor trade Asso V. SalvadoriSalvadori (1949) Ch. 556.

The torts of enticement and harbouring are old common law torts which protect the matrimonial rights of married persons; for instance the right of one spouse not to be denied the consort of the other spouse by a third party. Although, enticement and harbouring are valid torts in Nigeria, they have been abolished in England. (See section 2(9) of the Administration of Justice Act, United Kingdom; and the case of Best V. Samuel Fox & Co. (1952) 2 All ER 394.)

Furthermore, in these modern days, nobody will want to sue for these torts because they want to relate with their spouse freely and not by force of law.

Torts Protecting Miscellaneous Interests

This group of torts covers other multifarious and less common interests which are protected by the law of torts.

This is any intentional interference with the body of another person or his liberty. It may consist of assault, battery and false imprisonment.

ASSAULT

According to Gilbert Kodilinye, “assault is any act which puts the plaintiff in fear that battery is about to be committed against him.”. In other words, it is the threatening to harm or apply force to another person with the present ability to carry out the threat. Examples of assault include: threatening a person with a knife, broken bottle , etc.

ELEMENTS OF ASSAULT

The elements a plaintiff needs to prove to succeed in a claim of assault are:

  1. That there was threat to apply force:
  2. That the act will put a reasonable person in fear or battery

Here, it is not necessary to prove that the plaintiff was actually put in fear. What needs to be proved is that it was reasonable to expect an immediate battery.

 

That there was a Threat to Apply Force:

There can be assault without battery. In assault it is not necessary to prove that theplaintiff was actually put in fear or experienced fear. What needs to be proved is that itwas reasonable for the plaintiff to expect immediate battery. As a general principle,pointing an unloaded gun or even a model, or imitation gun at a person who does notknow it is unloaded or that it is a model gun and therefore harmless, is an assault. Thus, in R v St. George (1840) 173 ER 921, the defendant pointed a gun he knew to be unloaded at the plaintiff who did not know that it was unloaded, at such a distance that the complainant could have been hurt if the gun was fired. On a claim for assault the court held: that there was an assault, even though the gun was unloaded, because the complainant was put in fear of being shot. See also Logdon v DPP (1976) Crim LR 121.

That the Act will put a Reasonable Man in Fear of Battery:

Also, for assault to be committed, the act of the defendant complained about must be such that would put a reasonable man in fear that force is about to be applied to him. The act must put a reasonable man in fear of violence. This test is an objective test and it is not subjective to any particular plaintiff alone. Therefore, where the threat would not put a reasonable person in the shoes of the plaintiff in fear of violence, the tort of assault is not

committed.

However, the mere fact that the plaintiff who was threatened with battery is a brave person and was not frightened by the threat, will not bar the plaintiff from successfully claiming damages for assault, as long as the alleged act of assault would make a reasonable man or reasonable person in his shoes to be afraid of battery.

In Hurst v Picture Theatres Ltd (1915) 1 KB 1 CA, the plaintiff paid for admission to the defendant’s theatre. The defendants believing that the plaintiff had entered without

payment asked the plaintiff to leave. He was not afraid and refused to leave and was forcibly ejected. He sued for damages. The court held that the defendants were liable for

assault and false imprisonment.

BATTERY

Battery is the intentional application of force to another person, without lawful justification, however slight. This includes striking or touching a person in a rude, angry or revengeful manner. The elements include: application of force and intention to apply force.

In Pursell v. Horn (1838) 112 ER 966, the defendant threw water on the plaintiff, held: it was a battery. Also, in Leon v. Met. Police Commr (1986) 1 CL 318, the plaintiff was wrongfully suspected for carrying drugs. The police pulled him off a bus, punched and kicked him. The court held that there was battery of the plaintiff.

FALSE IMPRISONMENT

This involves total restraint of movement for however short a time.

The purpose of the tort of false imprisonment is to protect the right to personal liberty and right to freedom of movement. This was the position of the law in Bird v. Jones (1845) 7 QB 742.

This is an unlawful entry into land in possession of the plaintiff.

Tort of trespass to land can be committed by

  1. By unauthorized entry into the land
  2. Abuse of right of entry
  3. Placing an object upon the land

When there are two parties claiming possession of a land,  it is who has title to the land that would be deemed in possession of it.  See Olagunju V.  Yahaya

Also, a trespasser  can institute an action on another trespasser but not against the rightful owner of the land.  See the case of Ugoji V.  Onwu, Solel boneh Ltd V.  Ayodele, Amaka V.  Ebiefuna

It is worth to note that tort of trespass is actionable per say.  See the case of Sterling Civil Engineering Ltd V.  Ambassador Mahmoud Yahaya

 

CONTINIUING TRESPASSING

This situation may arise where one wrongfully occupies a piece of land and places an object on the land which continues to lie there.  See the case of Lajide V. Oyelaran

THE SCOPE OF TRESPASS TO LAND

In ownership of land,  the owner of the land is presumed to own everything to the effuse. This is expressed in the Latin maxim “Curus est solum eisu est usque ad coelum et ad inferos” ie ” he who owns the land posseses the sky above it to the he highest heavens and to the earth beneath it to the greatest depth.”

The implication of this is that any unauthorised interference with the subsoil of the land or any violation of the airspace above your land is trespass to land. See the case of Torbett V. Hill

However, it is not every time that intervention which happens in the airspace amount to trespass. Therefore, it has been held that the right of an occupier in the airspace above his land extend only to such a height as is necessary for the ordinary use and enjoyment of same and the buildings there on. The position of the law here is that no trespass is committed where an aircraft flies at a height of several hundred feet above the land in possession of the plaintiff. See the case of Bernstein V.  Skyviews and General Ltd. Also,  see Section 49 of Civil Aviation Act.

In the case of Jones V. Chapman, the court observed as follows: “if there are two persons in a field, each asserting that the field is his,  and each doing some act in the assertion of the right of possession, and if the question is,  which of those two is in actual possession. I answer the person who has the title is in actual possession, and the other is a trespasser.”

Similarly, in the case of Efana V.  Adekunle, Idibe. J held as follows: “if there is a dispute as to which of two is in possession, the presumption of law is that the person having title to the land is in possession.”

TRESPASS BY RELATION

Under this doctrine, a person who has a right to immediate possession and who enters the land pursuant to the exercise of that right is legally deemed to have been in possession from the time of accrual of right of entry. Consequently, he can sue for any trespass committed during the period he was out of possession.

TRESPASS AB INITIO

This is a situation where a person abuses an authority given by law to do something then he becomes a trespasser from the moment he entered the land and not when the abuse of authority is committed. See the six carpenter’s case (1610) 77ER p. 695.

Also,  note the development of the doctrine in *Elias V. Pasmore* where the court held that partial abuse of authority given by law does not render everything under it unlawful. See also *Chick fashions (west Wales) V.  Jones*

REMEDIES FOR TRESPASS TO LAND

The remedies available for trespass to land could either be judicial remedies and/ extra judicial remedies.

The judicial remedies available includes Damages and Injunction while extra judicial remedies available for trespass to land is forcible ejectment and distress damages feasant.

The word “tort” means “wrong”. A tort is an unjustifiable interference with the right of another person. It is a civil wrong which seeks to protect the right of persons and prohibits their been interfered with as well as to provide remedy for civil wrong suffered by individuals as a result of such interference.

The purpose of the law of tort is to protect proprietary right, prohibit wrongs and to provide remedies in form of award of damages when a tort is already committed. The law of tort therefore enforces rights and liabilities, provides remedies in the different areas covered by the law of tort and one of such area is trespass to chattel.

The word “chattel” is defined as any movable or immovable property or thing which is capable of being owned, possessed or controlled. Any unlawful and intentional interference with another person’s enjoyment of his personal property amounts to chattel.

Trespass to chattel is one of the tort that protects interest in property or proprietary right of a person.

The tort of trespass to chattel protects all goods and personal property of a person who has title to such goods or who is in possession of such goods or a person who has immediate possession against meddling, damage,  destruction, etc by prohibiting all interference without legal justification.

In an action for trespass to chattel, the plaintiff has to show that he either has actual or constructive possession at the time of the trespass and that there was an unauthorized or unlawful interference with such property.

The test of trespass to chattel is designed to protect the right to one’s chattel, protect the physical condition of the chattel as well as protecting the chattel from any form of unlawful interference.

In order to maintain an action in trespass to chattel, one of the things a plaintiff must prove is that he has possession as at the time of trespass and as a general rule,  in order for trespass to chattel to be actionable, the act must have been done intentionally and in some cases negligently and in such a way as to deprive the owner or possessor permanently of his chattel.

The remedies for trespass to chattel includes payment of damages,  replacement of the chattel,  repair of the damage and payment of the market price of the chattel or some other appropriate remedies.

CONVERSION

This is an interference, possession or disposession of the property of another as if it is one’s own.  It is an act of wilful interference without legal justification with any chattel in any manner that is inconsistent with the right of another whereby that person is deprived of the use of his property.

In the case of conversion,  the conduct of the defendant must be such that deprives tge owner of the chattel or such that amounts to a denial or a dispute in the title of the owner.

Also, the plaintiff need not be in actual possession of the property at the time of interference.

The Finder Of A Lost Property

According to the general rule, the finder of a chattel acquires no right over it,  unless it has been abandoned or lost and he takes it into her care or control in which he acquires tge right to keep it against all persons except the true owner or anyone who can assert a prior right to keep the chattel.

The finder of a lost property has a good title and has a right of interest to keep it against all persons except to the rightful owner of a property or his agent. However, if the finder is an agent and finds the property in the course of his business, according to the law he finds such a chattel on behalf of his employer who by law acquires the right of a finder.

The general rule of law is that a person who has the finder’s right over a property has an obligation in law to take reasonable steps to trace the rightful owner of a lost property before he can lawfully exercise tge right of an owner over the lost property.

Defences for conversion includes the following:

-A better title of a third party

-A subsisting lien or bailment

-Limitation of time,, etc

DETINUE

This is the wrongful detention or retention of a chattel whereby a person who is entitled to it is denied possession or use of it. Anyone who wrongfully takes,  detains or retains a chattel and after a proper demand for it refuses or fails to return it to the claimant may be sued in detinue. To successfully maintain an action in detinue, he must have title or right to immediate possession and there must have been unjustifiable failure or refusal to deliver the chattel to him.

Negligence in torts means omission to do something which a reasonable man would do or do something which a reasonable man wouldn’t do. Negligence is the breach of a legal duty to take care which result in damage underserved by the defendant to the plaintiff. This unlike intentional tort where the defendant desired the consequences. Here it is undeserved damage to the plaintiff.

Duty of Care

The development of this tort is categorized into 3 phases. The first phase was when negligence was merely a component of other torts.

The second phase when Negligence develop into action on the cases and this saw the beginning of negligence as an independence tort.

The third phase was from the decision of Donoghue v Stephenson (1932) Ap 562. InIn this case, Negligence was fully recognized as an independent tort capable of

extension into new category.

To establish Negligence the plaintiff must proof three things;

  1. He must prove the existence of duty of care
  2. He must proof the breach of that duty of care
  3. He must proof damage resulting from the breach.

Whether a legal duty exists or not depend on reasonable forceability of the injury.

This test was propounded by Lord Atkin in Donohue v Stephenson: Lord Atkin said “You must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbor and as to who is your neighbor, Lord Atkin said “your neighbor in Law include those persons who are so closely and directly affected by your acts, that you ought reasonably to have

them in contemplation as being so affected when you are directing your mind to the act of omission that are called to question”. So your neighbor does not mean those closer or nearest to you but those who you foresee likely to be affected by carelessness on your part.

In Donoghue v Stephenson (19832) AP 532 a manufacturer of Ginger Beer sold his product to a retailer, the retailer resold it to a lady who bought it for a friend of hers who was the plaintiff in the case. The plaintiff had consume most of the ginger beer when she noticed the decomposed remains of a snail in the beer. She became so sick that she had to be hospitalized and sued the manufacturer for damages in respect of her injury. The manufacturer claimed that there was no contractual relationship between it and the consumer and for that reason the plaintiff is not entitled to an action.

Breach of Duty of Care

For an action in Negligence to succeed, it must be proved that the defendant has breached his duty of care; in other words that he has not done what he ought to have done in the way he ought to have done it or has done what he ought to have done negligently.

In White v Bassey (1966) 1 NWLR 26: a motorist was driving along the street on a rainy day. It was proved that he did not speed and was not careless. A five year old boy dashed along the road and was knocked down by the car. It was held that the motorist had a duty of care all right along a highway particularly on a raining day not to speed and to be mindful of other road users. But in this particular case, since he had done what was expected of him under the circumstances he had not breach the duty. A defendant would breach a duty if he acted below the standard of a reasonable man.

In deciding what a reasonable man would have done in the circumstance, and in

assessing the standard of care expected of the defendant the court may take into account four elements:

The Likelihood of Harm

The greater the likelihood that the defendant conducts will cause harm, the greater the amount of caution required of him. In  Lord Wright’s words in Northwestern Utilities Ltd v London Guarantee and Accident Co. Ltd (1936) A 108 at P. 126. “The degree of care which the duty involves must be proportioned to the degree of risk involved if the duty of care should not be fulfilled.

The Seriousness of the Injury that is risked

The gravity of the consequences if an accident were to occur must be taken into account. The classic example is Paris V. Stepney Borough Council (1951) AC 367: Here the defendant employed the plaintiff as a mechanic in their maintenance department. Although they knew that he had only one good eye, they did not provide him with goggles for his work. While he was attempting to re move a pair

from underneath a vehicle, a piece of metal flew into his good eyes and he was blinded it was held that the defendant had been negligence in not providing this particular workman with goggles, since they must have been aware of the gravity of the consequences if he were to suffer an injury to his one good eye.

The importance of Utility of the defendant Activity

The seriousness of the risk created by the defendant activity and where the defendant could not has great social values; he may be justified in exposing others to risk which would not otherwise be justifiable. In all cases, one must balance the risk against the end to be achieved and the commercial and to make a profit is very differently form the human and to save life or limb.

The Cost and Practicability of Measures to Avoid the Harm

Another relevant question is how costly and practicable it would have been for the defendant to have taken precautions to eliminate or minimize risk. It is a matter of

balancing risk against the measures necessary to eliminate and “a reasonable man would only neglect……. Risk of small magnitude if he had some valid considerable expense to eliminate the risk. In Latiner v A.E.C. Ltd. (1952) 2 Q. B. 701 where the court held that: where a factory floor had become slippery after, and the occupiers did everything possible to make the floor safe but nevertheless a workman slipped on it and sustained injuries, the court held that the occupier had not seen negligent. The only other possible stop they could have taken would have been to close the factory, a position which will be too drastic.

STANDARD OF CARE

Negligence is conduct falling below the standard established for the protection of others against unreasonable risk or harm. This standard of conduct is ordinarily prudence would do in the circumstances.

The general standard of conduct required by Law is a necessary complement of the legal concept of ‘duty’. There is not only the question ‘did the defendant owe a duty to be

careful? But also what precisely was required of him to discharge it, it is for the court to determine the existence of a duty relationship and to lay down in general terms the standard of care by which to measure the defendant conduct. Thus, if at issue is the supervision of school children during midday break, a court would ordinarily be content with the fact that the duty of the school is that of a reasonably careful parent.

The Reasonable Man

The reasonable man of ordinary prudence is the central figure in the formula traditionally employed in passing the negligence issue for adjudication. In order to objectify the Laws abstractions, like ‘care, reasonableness or foreseability, the man of ordinary prudence was invented as a model of the standard to which all men are required to confirm. He is the embodiment of all the qualities which we demand of the good citizen; and if not exactly a model of perfection.

On the whole, the law has chosen external objective standards of conduct. When men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary for the general welfare. If the standard were relaxed for defendants, who cannot obtain the normal, the burden of accidents losses resulting from the extra hazard created by society dangerous group of accident-prone individual would be thrown on the innocent victims of sub-standard behavior.

Although, the legal “standard of foresight of the reasonable man eliminate the personal equation and is independent of the idiosyncrasies of the particular person whose conduct

is in question. Negligence consists in failure to do what the reasonable man would have done under the same or similar circumstances and the latitude of that expression in effect

makes some allowance not only for external facts, but also for man of the personal characteristics of the actor himself.

Moral Qualities and Knowledge

A man is expected to have that degree of common sense or knowledge of everyday things which normal adult would posses. For instance, a reasonable person knows that petrol is highly inflammable, that solid objects sink in water and that gas is poisonous when inhaled. Furthermore, where the defendant holds a particular position, he will be expected to show the degree of knowledge normally expected of a person in that position.

Thus, for example, in the Wagon Mound (No.2) (1967) 1 AC 617, the privy council took the view that ship owners were liable for a fine caused by discharging oil from the ship into Sydney Harbour, because their chief enquire ought to have known that there was a real risk of oil catching fire. Again, it is clear that an employer is required to know more about the dangers of unfenced machinery than his workman.

With regards to facts and circumstances surrounding him, the defendant is expected to have observed that a reasonable man would notice. The occupier of premises, for

example, will be negligent of the fails to notice that the stair are in dangerous state of disrepair, or that a septic tank in the garden has become dangerously exposed, so that

lawful visitors to his property are put at risk. Moreover, a reasonable occupier is expected to employ experts to check those installations which he cannot through his lack of

technical knowledge, check himself such as electrical wiring, or a lift.

Skills

A person who holds himself out as having a certain skill either in relation to the public generally (e.g. a care driver) or in relation to a person for whom he is performing a service (e.g. a doctor) will be expected to show the average amount of competence normally possessed by person doing that kind of work and he will be liable in negligence if he falls short of such standard. Thus, for example s surgeon performing an operation is expected to display the amount of care and skill usually expected of a normal competent member of his profession. See Whiteford V Hunter (1950) W N 553.

Intelligence

In determining whether the defendant in his action came up to the standard of a reasonable man, the court will measure those actions against the conduct expected of a person of normal intelligence and the defendant will not be excused for having noted “to the best of his own judgment” if his “best” is below that to be expected of a man of ordinary intelligence.

Age and Lunacy

In the case of children, the Law has made considerable concession to the subjective standard most of the decision have been with contributing negligence where there is greater temptation to take an indulgent view and give added with to exculpatory considerations, but there is no doubt that a child whether as plaintiff or defendant, is only

expected to confirm to the standard appropriate for normal children of similar age and experience. This governs alike the child capacity to perceive the risk as well as his sense

of judgment and behavior. Thus it was held not negligent for a boy of 8 years to be striking matches in a barn and for a 5 years old to be shooting with an arrows.

Moreover, a minor who engages in dangerous adult activities such as driving a car or handling industrial equipment, must confirm to the standard of the reasonable prudent adult.

Corresponding allowance has always being made in Law to the aged whose Mental and Physical faculties have become impaired. The position of lunatics remains controversial.

Some courts have been prepared to excuse defendants whose lunacy was so extreme as to preclude them from appreciating their duty to take care on the ground that negligence presupposes an ability for rational choice. But the weight of authority support the contrary view that it would be unfairly prejudicial to accident victims if any allowance were made for a defendant mental abnormality.

Breach of a Duty

Having established that a duty of care is by the defendant to the plaintiff in particular circumstances; the next ingredient to determine is to discover whether the defendant is in breach of that duty. The standard of care expected of a particular defendant is usually set by law and it is a standard of the reasonable man i.e. an objective test. In “street on Torts”, it is illustrated that, “if A owes B a duty of care, A must attain a standard of a reasonable person i.e. reasonable man”. However, in driving at reasonable standard of a defendant, the court must be guided by the following factors;

(1) Magnitude of the Risk. This deals with the likelihood that the injury would occur and the serious of the injury that is risked. The greater of risk to the plaintiff, means greater precautions than normal that must be taken by the defendant. In PARIS V.STEPHY BOUROUGH Council 1951 AC 367, the plaintiff who had one eye was employed as a mechanic in the defendant’s garage. Part of his job includes welding. It was not normal to put on goggle in such a job. In the cause of his work a piece of metal flew into the plaintiff’s eyes, as a result he becomes completely blind. He

then sued the defendant. The defendant was held liable. Although he would not have been liable to a person with normal sight.

(2) The Skill the Defendant Posses or Holds Himself out as such. Where a person posses special skill or pose himself as possessing or holding such skills it shall be his duty to exercise such care as a normal skillful member of his trade or profession, he is reasonably expected to exercise. Where such a skillful person is alleged to have committed negligence, in so exercising such care, his performance shall be judged in the normal standard, reasonably expected of an ordinary person with requisite skill in a similar profession or business. The maxim is imperatia culpas ad

numeratiu. See section 24 of the tort law of Anambra state, rule 10 for the rules of medical professional conduct for the Medical and Dental Practitioners revised edition 1995, see also UBA Ltd V Nkene Dilichukwu 1999 12 NWLR pt 629pg

132.

(3) T he Cost or Practicability of Avoiding the Harm. The risk must be balanced against the measures necessary to eliminate it and the practical measures which the defendant would have taken to avoid the harm would be taken into consideration. In Latimar v. a.e.c. 1952 2QB pg 700 and 711, a factory floor became slippery as a result of flood. The occupants of the factory did everything possible to get rid of effects of the floor. Nevertheless, the plaintiff was injured and then sought to establish that the occupiers would have closed down the factory. The House of Lords per Lord Denning held that the risk of injury created by the slippery floor was not so great as to justify the closure of the factory. The defendants were thus not held liable.

Here, you must prove that the breach of duty of care is the cause of damages. There is causation in fact and Causation in Law. You must decide the issue of causation in fact before that of Law. Causation is concerned whether the breach of duty was a matter in fact the cause of the plaintiff damage. The remoteness of damages is concerned with the fact as a matter of Law; the breach of duty is the cause of the plaintiffs damage. The plaintiff is unable to prove that the defendant breach in actual fact causes his damage he will fail. The Court apply the “But for” test. If the plaintiff prove that but for the defendant negligence his damage wounding have occurred. He will succeed eg. Barnet v Chelsea & Kessigton Hospital Management (1969) 1 OB 428. In this case the deceased came to hospital complaining of vomiting after taking some tea. The nurse on duty phoned the doctor. But instead of the doctor coming he told the deceased to see his own general practitioner. Late in the day he died, it was found that he died of food poison. In an action by the wife against the hospital for the negligence of the doctor. It was held that the doctor was actually in breach of his duty of care and that breach was not the cause of the deceased death.

It was argued however, that even if the doctor treated him effectively he would still have died. He was not liable. See also Culther v Bedford Motors (1971) 1 OB 418.

Note that sometimes they may be more than one cause. Where the causes caused different types of damages each person will be liable for the consequences of his own act. Problem may however arise where the cause are merged. E.g. Parker v Willoughby (1970) A.C. 467. In this case the plaintiff was injured in his leg by the defendant negligence that caused him to be disabled and therefore unable to maintain his former job. He has to take on a lower paid job, a place where robbers attacked him and shot the already wounded leg and the leg had to be amputated. This happened before trial. The defendant argued that his negligence action was not the cause of the amputation and that the second injury had obtained his own injury. The court had that the defendant was still liable to the plaintiff since the only result of the robbers action was the amputation of an already damaged leg and therefore the defendant action was still the cause of the plaintiff loss.

More important than causation in fact is causation in law. It is evidence that a plaintiff cannot be made answerable for all the consequences of his actions without end. There must be a line drawn with regards to the consequences in which the defendant won’t be too remote for . The question of causation in law is quite complex and sometimes the court had resorted to common sense and policy criteria rather than scientific criteria the case of the Munnity of war transport (1942) AC127 where Lord Wright said that Causation can only be understand as the man in the street would understand it. And therefore the choice of the real or effective from out of a whole complex of factors must be made to apply to common sense of standard.

A similar view was expressed in another case where the judge said that the court will apply public policy experience, and a rough sense of justice in deciding the question of causation in Law.

It should be noted that this does not imply that the judges are to act as arbitrary because there are certain laid down principles which should guide the judges when making their decision. In fact what the judges are saying is that there must be a link between the defendant’s action and the plaintiffs damage and such a link must not be disturbed by any other event or by the act of a 3rd party. Once there is

intervention of a new course thereby making the link, the defendant ceases to be liable. There are two cases which compete against each other with regards to remoteness of damages. The first one is the direct consequences “Best”

established by the case of Re-Polems (1921) 3 KB 560 that case states that the defendant is liable for all the consequences whether foreseeable or not which can be directly traced to his act.

The second application is to be found in the case of the wagon mand (1961) AC 388 which rest the “Reasonable foresight test”. That text state that all consequences which could not reasonably be foreseen are too remote whether or not the flow directly from the defendant acts.

Re-Polems was decided by the house of Lords in England while wagon Mand by Privy Council. But Wagon Mand has in fact over rule Re-Polemis.

RE-POLEMIS case (1921). In this case, the charterer of a ship employed Stevedove to off-load a ship. Among the cargo in the ship were tins of Benzine some of which had leaked during the voyage and therefore a lot of petrol vapor has collected in the hold of the ship. The af’s servant negligently dropped a plank on the hold which has leaked. This caused a spark which ignited the Benzines. And a fire which eschewed damage the ship. The arbitrator before whom the parties appeared held inter alia that the fire was caused by the spark from falling plank which came into content with petrol vapor. They also found that the spark itself

could not reasonably have been anticipated by the falling of the plank even though some damages to the ship was foreseeable. Despite the findings of the arbitration, the court had the defendant was liable because of the fact that the plaintiff’s damage was a direct resort of the defendant’s negligence action. The court said that duty of care was me thing and that damage was another and that different tests apply to both issues.

Several years later the privy Council had the opportunity to decide on a similar issue in the case of the Wagon Mlaud. In this case a company O. T. Ltd had chartered a ship known as the Wagon Mound. The ship was anchored of a wharf

belonging to C. Oil Coy for the purpose taking fule. The servant of O.T. Ltd negligently split a large amount of oil on water and this quickly spread to outsideof the Labour and onto the wharf which belong to M.B. Ltd, where some wielding work was being carried out on a ship. Upon noticing the present of oil in the water the manager of M.B. Ltd ordered wedding work to stop the approaching the

manager of C. Oil Coy as to the safety of continuing wedding work in view of /Oil on water at the wharf. C. Oil Coy assured him that there was no fear and coupled with his own knowledge that it is not normal for water and oil to unite. He ordered work to continue but with precautions. Some few days later the oil caught fire and caused extensive damage to M.D. Wharf. M.S. sued the defendant for negligence. It was found as a fact that it was foreseeable for oil on water to catch fire. It was also found that some damages were caused to M.D. Wharlf. The trial Court held the defendant was liable on the decision of re-polmis.

The privy council however held that the defendant was not liable because it was not reasonably foreseeable that such a damage will occur. The damage for fire was not reasonably foreseeable. The privy council mentioned that the RE-Polimis was no longer good law. And prompted out that it will be illogical to apply different tests to the issue of duty of care and that of remoteness of damage.

When this test is applied it is evidence that the differences will only be liable for such damages that can be foreseen. The wagon mould case had been applied in various cases.

Hughes v Lord Advocate (1963) AC 838. A man hole in Edinburg Street was opened under statutory powers for the purpose of magnetizing underground telephone equipment. It was covered with a flut and in the evening, left by the workman unguarded but surrounded by warning paraffin . an 8 years old boy entered the tent and knocked and towered one the  lamp into the hole. An explosion occurred amusing him to fall into the hole and severely burnt. Held: that the workman were a breach of duty of care to safe-guard the boy against the type of occurrence which arising from a known source of danger. The lamp was reasonably foreseeable that source of danger acted man unpredictable way.

Doughty v Turner Manufacturing Coy. (1964) 1 QB 508. The defendant placed over a heat treatment bath containing cover sodium cyaride as a were hot molten liquid. The defendant employee carelessly dislodged this cover so that it showered his bath. The molten liquid exploded, emptied from the bath and damaged the plaintiff workman nearly. Although it was foreseeable that damage by splashing would require soft from dislodging the cover. It was not foreseeable what an explosion would ensued Held: the defendant were held liable, even though the kind of harm, damage by burning was foreseeable. They would have been liable for damage by splashing; the risk of damage by explosion was not foreseeable.

See Tremain v. Pike (1969) 3 A.E. R 1303. Here the damage suffered by the plaintiff was unforeseeable. The plaintiff suffered wills disease which was contacted through rat urine. The defendantf therefore escaped liability.

There is one area which however was not effected by the Wagon Mound, that area is the “Eggs Shells Skulls Personality” i.e. where a person suffered an unusual kind

of peculiar weakness. The E-Polemis case is the only one that can apply. In this case the court will not apply the reasonable foresight test. This means that you take your victim as you find him.

See Smith V. Leech Brain & Co. (1962)2 QB 405. The Judge in the case held that it was obvious that the Privy Council could not have intended their decision in the wagon mound to apply to the decision in Egg Shell Cases and that this area is still governed by Re-Polimis decision. Here a Burn was negligently inflicted on the pf lips. This developed into cancer and killed the man 2 years later. It was found that

the man’s lip before the burn was already in a pre-malgnant state, but the burn merely made the cancer to develop quicker, the pf were nonetheless held liable because according to the law he must take his victim as he found him.

Novus Causa

The principle states that the defendant is not be liable for damages resulting from intervening factor. The handling of Nova Causa under the direct consequences test lead to the definition being liable for all the direct consequences of the defendant’s action until a new intervening event breads the chair of causation.

The handling of the nova causa include the wagon mound posses the question whether it intervening event was foreseeable, if it was, it follows that the chair of causation is not broken and the df were still be liable for the damage. The effect of a successful plea of nova causa is to render the defendant not liable for the alleged damage.

Where however the pleas fail, the defendant will continue to be liable for the injury. See Stansaby v Trowunmi (1948) 2 KB 48.

In Wieland v Cereals Lord Carpet (1969) 3 All ER 1006. The plaintiff was injured by the negligence of the defendant as a result of the injury the pf had to wear a collar all the time

and this made it difficult for her to adjust his spectacle, she had a fail and sustained further injuries and sued the df for this first injury. The defendant argued that the fall was an intervening force for which he should not be held responsible but the Co not had that the fall and injury was attribute to the original negligence of the df and the this was a foreseeable consequence of the former injury and therefore there has not been an intervening event breaking the chain of causation contrast.

PROOF OF NEGLIGENCE: RES IPSA LOQUITOR

In Scott v London and st Katherine Cockes (1855) 3 H of L 596.  A customofficer was passing through the door of the defendant warehouse when 6 bags of sugar fell on him. The judge of first instance directed a discharge verdict for the df on the ground of lack of negligence, the court of Appeal ordered a retrial and if was in that case that the rule “res ipsa loquitor was formulated.

Earl C. J state as follows:

The Appeal Court ordered a retrial and it was that case that the maxim or rule Res Ipsa loquitor was formulated. Earl C. J, Stated as follows:

There must be reasonable evidence of negligence but where the thing is shown to be under the management of the servant and the accident in such as in the ordinary

course of thing does not happen if those who have the merging use proper care, it afford reasonable evidence in the absence of explanation by the df that the accident

arose from the wants of care. The statement above two problem;

  • When does the doctrine applies
  • What is the effect when it is applied

Regarding the first one it appears that 3 condition must be fortified for res ipsa loquitor to apply. The facts relating to the accident must not be known, there must be amazement of explanation of the accident. Once the of the accident are known then res ipsa loquitor fail or thing the pf have to prove his care as in the ordinary care of negligence. See Barkway v Smith Wales Transport Co. Ltd (1950) 1 All ER 392.

In that case the pf was in a vehicle managed by the df when the namely would to the wrong side and fail over and the pf was injured. It was found that there was a defect in one of the tyres and they if the df had co-operated a proper system of checking vehicle that defect might whether res ipsa loquitor apply. The Court held it that there was no need the facts are known.

This is the third leg of proof required to establish negligence. If there is a duty and a breach of it but no injury or damage can be proved, an action in negligence will fail. If there is damage, it must be traceable to the breach. The connection between the defendant’s conduct and the plaintiff’s injury raises a congeries of problems which are conventionally canvassed in terms of remoteness of “damage” or proximate cause.

The other issue is to what extent, the defendant should have to answer for the consequences which his conduct has actually helped to produce. There must be a reasonable connection between the harm threatened and the harm done.

After establishing that a duty of care is owed to him and there was a breach of same, the plaintiff must further establish and prove that he suffered damage which was not too remote as a result of the breach.

Damage constitutes consensus in fact and causation in law (i.e. remoteness). This is known as concession in law. The question of remoteness arises only after concluding the question in fact. The essence of concession in law is to avoid the situation where the defendant is liable ad infinitum (indefinitely); for all the consequences of the wrongful conduct.

In certain cases, consequences of the defendant’s tortuous conduct would be considered too remote if his wrongdoing to impose on him responsibilities for those consequences. The court, therefore, imposes the cut-off point beyond which the damage is said to be too remote.

An independent event which occurred after breach of duty and which contributed to the plaintiff’s damage may break the chain of causation, so as to make the defendant not liable to any damage that occurs beyond this point. Where this occurs, the event is void to be novus actus intervenes.

In Monye v. Diurie (1970) NMOR 62, the plaintiff was knocked down as a result of careless driving of a lorry by the defendant. He suffered injury to his leg and was rushed to the hospital almost immediately. However, before completion of his treatment and against the doctor’s medical advice, he discharged himself only to return after two days. The leg was infected and consequently it was amputated.

A claim for the loss of the leg brought against the defendant by the plaintiff failed because, though, it was forceable that the plaintiff would as a result of the accident sustained injury. It was not foreseeable that the defendant would against medical advice leave the hospital for two days leading to infection that necessitated the amputation of his leg. This was held to be too remote and the defendant was not held liable.

Contributory Negligence

This is the conduct of the pf which falls below what a reasonable man could observe for his non safety. When a pf sues a df for negligence, the df will accept negligence at will also blame the pf for his own fault and content that the pf should share in the loss.

At common Law, the rule was very harsh because if there was any indication that the pf was partly responsible for the damage, he will loss all his claim. In other to mitigate this hardship the court introduced the lat opportunity rule i.e. that the df should be responsible because he had the last opportunity to avoid the damage and vice versa before the introduction of the civil liability Miscellaneous Act(1961) and Lagos State applicable, laws Edict (1989) S. 11 for the Northern State S. 5 Civil liability miscellaneous provision law N0 2 (1957) for former west and mid-west N08 Torts Law Cap 122 (1959) Edition. EastEast Torts Law Cap 122 1959 Edition. East Tort Law No 7 1962 S.3.

The present position under this law is that the Court now avoid fixed rules and there are provision for apportioning blames on the parties as a result of this law the pf will no longer fail because he was partly responsible but they will both pay for their part of the blame. The last opportunity rule was also abolished.

In any case you cannot hold a df liable for contributory negligence if the blame is entering on the pf.  In Evans V S.B. Bakare (1974) NWLR 78. The evidence as found and accepted by the trial judge was that the pf was negligently riding his motorcycle, emerged into the road and collided with the df’s vechicle. The pf was entirely to blame for the accident but the trial judge erroneously applied the principle of contributory negligence. This was however offset by the court of appeal. See also Okuwodu V Alli (1957) WRNLR 195. Held:- the pf who rested his arm on the window of his vehicle while it ws in motion was not contributory negligence while the df driving negligently brushed to arm. The af tried to plea that the pf was contributory negligence but the court rejected this contention and held the df wholly responsible. If appears that failure on the part of a motor-cyclist or his passenger to, wear crash-helmet is contributory negligence or their part for head injuries.

Defence of Consent

This implies that the plaintiff by his own free will and with the full appreciation of the danger has absolved the defendant from liability. The effect of this defence where it succeed means that the plaintiff will not recover anything at all. The consent under this defence must be gentle. There must be no pressure or collusion of any sort e.g. Economic pressue may lead the pf to do what he would normally not do. There are some risky jobs undertaken by people because of economic pressure. Such a person who sues for injury as a result of such job will not be faced by the defance of volenti non fit injuria. See Smith v Baker (1891) A.C. 325.

Incaso, the workman were working in a quarry. A crane was carrying heavy stones moving to and fro above them and they knew. The stone fell and injured the plaintiff. In an action against the defendant, they pleaded volenti not fit injuria but it failed.

Similarly, there must be no legal or moral kinds of pressure eg. In rescue cases – A person who goes but to rescue another person by reason of the negligence by another person will not have this defence against him as there is moral pressure.

Note: However, that the plaintiff’s action must be reasonable in the circumstances where it is a hopeless venture and where it will be clear to a reasonable man that it is risky then the defence will succeed but it will be difficult for the court to come to such a conclusion.

A nuisance is an inconvenience materially interfering with ordinary comfort, physical of human existence, not merely according to elegant and dainty modes and habits of living but according to plain and sober and common notion of English people. See the case of Walter V. Selfe (1851) 64 ER 849 at 852

The term nuisance can be traditionally used in three ways:

  1. To describe an activity or condition that is harmful or annoying to others e.g indecent conduct, rubbishing, garbage dump, dressing which can constitute nuisance, etc.
  2. To describe the harm caused by the aforementioned activity or condition e.g loud noise, objectionable odour.
  3. To describe a legal liability that arises from the combination of the two. However, the interference must not be as a result of the neighbor trespassing on a land but arising from activities taking place on another person’s land that is affecting the enjoyment of that land.

Nuisance is that branch of the law that is mostly concerned with the protection of the environment though there are areas of nuisance such as: obstruction of the highway or access there to which in itself may have no environmental flavor. Nuisance is actionable, whether public or private.

 

PUBLIC NUISANCE

It is an act affecting the public at large or some considerable portion of it or interfering with right which members of the community might otherwise enjoy such as  health, safety, comfort or convenience of public generally or that tends to degrade public morals, trades that causes offensive smells, intolerable noises and keeping of inflammable substance e.g gun powder in large quantity.

N.B: Public nuisance is a crime because it interferes with the convenience and comfort of the public. Example of this includes; obstruction of a public highway, interfering with navigation right of a river, making obscene calls to a woman, obstructing the traffic, etc.

Public nuisance being primarily public, it is only the Attorney General that can bring an action on it. Also, a private person can sue for public nuisance by virtue of Section 6(6) and 17(e) of the 1999 constitution if he can prove that he has suffered particular damage over and above the general public.

To prove that one has suffered damage;

  1. That particular person must show a particular injury that occurred to him beyond that which is suffered by the rest of the public.
  2. Such injury must be a direct injury and not a mere consequential injury.
  3. The injury must be of a substantial character.

 

PRIVATE NUISANCE

This is the right of private individuals. It is an unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it.

Under common law, persons in possession of real property are entitled to the quiet enjoyment of their lands. If a neighbour interferes with that enjoyment, it is simply an interference with quiet enjoyment of land and does not include trespass. The conducts which could amount to private nuisance includes the following:

  1. Conducts which could inflict injury to property, structure, vegetation, beings, animals
  2. Conducts that will affect the comfort, convenience, health and enjoyment of persons and the likes

 

DEFENCES

Among the defences which the defendant may plead in an action for nuisance includes;

  1. The triviality of the nuisance alleged
  2. The reasonableness of the act having regard to the locality, consent, prescription, contributory negligence
  3. Town planning permission
  4. Act of stranger
  5. Act of God

N.B: it is not a defence that a claimant was aware of the nuisance when he moved into the environment.

 

REMEDIES

Remedies to the tort of nuisance includes damages and abetment

In the law of tort, there are several areas where the principle of strict liability applies and in various degrees.

Strict liability is a liability that attaches to a person once a wrong occurs, without actual negligence or intention, because there has been a breach of an absolute duty not to do the thing that is prohibited. Strict liability is also known as “absolute liability” or “liability without fault”.

The tort in which strict liability exists in various degrees including: including the rule in Rylands v. Fletcher, liability for animals, liability for breach of statutory duty, liability for defective products and consumer protection, liability for libel, etc.

Essentially, the principle of strict liability means that, a wrongdoer is liable once the prohibited act is done or occurs, irrelevant of the state of mind of the wrongdoer at the material time.

As a matter of fact, all over the world, whether criminal law or torts, strict liability means that mens rea or guilty mind is not relevant and is not required for a wrongdoer to be liable.

 

THE RULE IN RYLANDS v. FLETCHER

According to Blackburn. J, in the celebrated case of Rylands v. Fletcher, he quipped that:

“The rule of law is that a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his own peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequences of its escape”.

Essentially, the rule in this landmark English law tort case applies the doctrine of strict liability to inherently dangerous activities.

On appeal by Rylands, the House of Lords confirmed the previous judgement but restricted the rule to a non-natural use of the land. It established a rule arguably distinct from the tort of nuisance.

Also, the so called Ryland’s rule has in Australia and some other countries become absorbed into the ordinary law of negligence with all the requirement of duty of care, test of reasonableness of care and proximity.

The rule in Rylands v. Fletcher was established as a judge-made law in response to damage caused by the escape of water into neighbor’s land.

The application of this rule, has been an important step in the development of legal policy, relating to modern industries, risk allocation and negligence. This rule is strict in the sense that it relieves the plaintiff of the burden of showing fault.

 

THE ELEMENTS OF RYLANDS v. FLETCHER

To succeed in a claim under this rule, a plaintiff has to prove three elements, which are;

  1. That the defendant brought or kept a non-natural user on his land.
  2. That there was an escape of the non-natural user.
  3. That damage was done to the plaintiff as a result.

 

THAT THE DEFENDANT BROUGHT A NON-NATURAL USER ON HIS LAND

According to Ese Malemi in his book, Law of Tort, “Non-natural user” will consist of: something that was not naturally on the land or something which is not an ordinary or usual user of the land.

Therefore, to succeed in this rule, the plaintiff must establish that the defendant either brought and kept something on his land or the thing was brought by a third party and the defendant allowed it for his own purpose. Thus, in Crowhurst v. Amersham Burial Board (1878) 4 Ex D 5, the defendant board planted yew trees on the boundary of it’s land. The branches of the yew trees extended into the land occupied by the plaintiff. Held: the Defendant was liable for bringing the poisonous yew trees into it’s land. It was a non-natural use of the land to plant such poisonous trees, and the branches of the trees had escaped by extending into the plaintiff’s field, where he kept domestic animals.

 

THAT THERE WAS AN ESCAPE OF THE NON-NATURAL USER

To succeed in a claim under this rule, the plaintiff must prove that the non-natural user or thing in question, escaped from the place where the Defendant brought or kept it to a place outside it, and caused harm to him or his property.

In Read v. Lyons (1974) AC 156, the Plaintiff was  injured by an explosion in the plaintiff’s ammunition factory while she was carrying out her duty as an inspector. At this, she sued for damages. Furthermore, the Plaintiff was unable to prove negligence on the part of the Defendant but alleged that the Defendant was liable under the rule in Rylands v. Fletcher. Held: the Defendant was not liable as there has been no escape sufficient to render the Defendant liable, under the rule as the injury occurred on the Defendant’s land and not outside of it.

However, in the case of Rainham Chemical Works ltd v. Belvedere (1921) 2 AC 465, the Defendant company carried on the manufacture of explosives. Owing to improper storage, an explosion occurred which caused damage to a neighboring property. Held: the Defendant was liable on the principle of Rylands v. Fletcher for the escape which occasioned the damage.

 

THAT DAMAGE WAS DONE TO THE PLAINTIFF

Also, in order to succeed under this rule, the Plaintiff must prove that the thing that escaped caused damage to him.

Here, the Defendant may not be liable on mere occurrence if it doesn’t cause damage to the Plaintiff. This includes personal injuries or damage to land, house, structures, properties, etc.

 

APPLICATION OF THE RULE IN NIGERIA

The hazards of pollution is associated with the oil industry and rapid growth of manufacturing activities in Nigeria since 1960 would seem to have ensured an important role for the rule.

The most significant one is the case of Umudje v. Shell B.p petroleum (1975) 11 SC 155 where the Supreme Court held that the Defendant was liable for the escape of crude oil waste that caused damage to the Plaintiff’s land.

 

 

 

 

DEFENCES FOR THE RULE

  1. Act of God

Here the Defendant is not liable if he proves that the escape of a thing and the consequent damage occasioned were due to an act of God. This could include an escape caused by wind, tide, rain, storm, etc.

In the case of Nicholas v. Marshland (1876) 2 Ex D 1, the Defendant had for many years been in possession of some artificial pool. An extraordinary rain broke down the embankment and swept away some bridges of the Plaintiff. It was held that the Defendant was not liable for the damages caused because there had been no negligence on his part.

 

  1. Consent of The Plaintiff

Where a Plaintiff has expressly or impliedly consented to the source of danger, the Defendant will not be liable, unless he has been negligent.

This defence attracts the maxim of “volenti non fit injuria” ie an injury is not done to one consenting to it.

In Peters v. Prince of Wales Theaters Ltd (1943) KB 73, the Defendant company leased a shop in their theatre building to the Plaintiff. In the building, a water sprinkler was installed against fire risk. However, this water sprinkler developed fault and water poured from the system and damaged the Plaintiff’s stock. Held: the water sprinkler had been installed for the common benefit and protection of the Plaintiff and Defendant and there was no negligence on the part of the Defendant in installation and maintenance of the system. Therefore, he was not liable.

 

  1. Act of a stranger or third party:

A Defendant may avoid liability if he is able to prove that the escape was due to the independent act of a third party, thief, trespasser or stranger over who he has no control.

 

  1. Statutory Authority:

Sometimes, public authorities cahrged with performing a particular service like supply of water, gas, electricity are exempted from liability, provided they have not been negligent in discharging their duty.

Thus, in Green v. Chelsea Waterworks co. (1891-94) All ER 543, the Defendant water works was authorized by statute to lay water mains for the supply of water in the town of Chelsea, England. A water pipe bursts and water flooded the Plaintiff’s premises. Held: the Defendant was not liable as there was no negligence on their part.

All over the world, people rear or keep various kinds of animals for different purposes which includes; for food, for commercial purpose, as pet, etc.

Some of the animals kept for different purposes may be domestic animals or wild animals. The general rule of law as regards keeping of an animal is that a person keeps an animal at his own risk and is liable for any injury or damage done by it. This position of he law is in consonance with Section 2(1) of England’s Animal Act 1971. This is due to the effect that the keeper of a dangerous animal is strictly liable for any harm caused by that animal and it is immaterial whether the Defendant was a mere keeper or real owner in as much as he is in possession of it.

 

LIABILITY FOR DANGEROUS ANIMALS

Liability in this situation is usually predicated on whether or not the owner of the animal had prior knowledge of the animal’s conduct.

A legal action brought to make an owner, keeper or custodian of a dangerous animal liable for it’s conduct is known as scienter action.

Scienter actions classify dangerous animals into two categories. Namely;

  1. Ferae Naturae Animals
  2. Animals Mansuetae Naturae

 

 

FERAE NATURAE ANIMALS

The term “Ferae Naturae” is a Latin word meaning “wild nature” ie, animals that are wild by nature and dangerous by nature. They include; lions, tigers, elephants, Cheetahs, etc.

They are generally dangerous. However, some of them can be tamed and if one of them is tamed and causes injury to another person, the owner/keeper would be strictly liable, regardless that this specie of animal has not attacked anyone in the past.

Thus, in Behrens v. Bertram Mills Circus (1957) 1 AllER 583, the owner of a tamed elephant was held liable for the acts of the elephant in the attack of the Plaintiff. This was regardless of the fact that the elephant had never attacked anyone in the past.

 

ANIMALS MANSUETAE NATURAE

The term “Mansuetae Naturae” is a Latin phrase, meaning “tamed by nature”or an animal that is not normally dangerous but occasionally attacks human being e.g are dogs, bulls, cows, etc.

Here, all the Plaintiff has to prove to establish liability is that the animal has a vicious tendency and the owner was aware of this vicious tendency. In Hudson v. Robert, the Plaintiff was gorged by the Defendant’s bull because the bull was irritated by the red handkerchief which the Plaintiff wore on his neck. The P was able to prove that the D knew of the vicious tendency and the D was held liable.

Note however that liability would not arise in a situation in which the animal was acting according to it’s natural instinct.

N.B: Liability for an animal is strict. As such, a person who keeps an animal does it at his own risk and he is strictly liable for any damage caused by the animal.

 

 

 

 

 

DEFENCES TO SCIENTA ACTION

  1. Plaintiff’Fault:

Where a person irritated or courted an animal and invited the injury upon himself or property. In Serah v. Blackburn, it was held that a person who trespasses into another man’s land and is attacked by a bird dog would have no claim due to his default. Also, in Syncamore v. Ley, it was held that the act of the Plaintiff in teasing the dog serves as a defence since it was the Plaintiff’s default it occurred.

 

  1. Consent/ Volenti non fit injuria:

This could apply in situation where a person by nature of his work or other purpose, has voluntarily exposed himself to the risk of being attacked by the animal. Such was the situation in Rands v. McNeil (1955) 1 QB 253, where a person willingly offered to train a dog and got injured in the course of doing so. Held; he had consented to the danger that could arise in so doing.

 

  1. Act of a third Party

This may be a defence wherein a third party Chase’s an animal on to another person’s land or frightens it and causes it to run to the plaintiff or his property, thereby occasioning injury to him or causing damage to his property.

 

  1. Act of God

An act of nature such as lightening or loud thunder which can cause animal to fear and jump on to the Plaintiff or stampede into his property or an animal running away from flood, following a heavy downpour of rain may come under plea of act of God.

 

CATTLE TRESPASS

This category of animal trespass deals with situation in which cattle in the possession or control of the Defendant moves into the land of the Plaintiff to cause damage therein. The animals in this category are goats, dogs, cows, pigs, etc.

The tort of malicious prosecution is committed where a defendant without reasonable or probable cause maliciously institute a criminal proceeding against the plaintiff which terminates in favor of the plaintiff.

The purpose of the tort of malicious prosecution is to prohibit unlawful prosecution of a person. It protects a person that has been prosecuted without reasonable or probable cause.

 

ELEMENTS OF MALICIOUS PROSECUTION

In order to succeed in an action for malicious prosecution, the Plaintiff must prove the following:

  1. That the Defendant instituted a prosecution against him
  2. That the prosecution ended in the Plaintiff’s favor
  3. That the Defendant had no reasonable and probable cause
  4. That the Defendant acted with malice
  5. That the Plaintiff suffered damages to his reputation, person or property.

 

That the Defendant Instituted A Prosecution Against Him

The Plaintiff must show first of all that the Defendant Instituted prosecution against him. In Danby v. Beardsley (1880) 43 LT 603, it was held that: “ to succeed in this case, the Plaintiff must show that it was the Defendant who was actively instrumental in setting the law in motion against the Plaintiff”.

The following principle as to what “setting the law in motion” has been established by the authorities:

  1. It is not necessary that the Defendant should have actually conducted the prosecution. It is sufficient for liability if for example, he laid an information before a magistrate, on the basis o which the magistrate issues a summon on the Plaintiff as seen in Inneh v. Aruegbon (1952) 14 WACA 73
  2. At one time, it was thought that the Defendant would not be liable unless the Prosecution could be said to have actually commenced. See Gregory v. Derby.
  3. Where the Defendant merely informs the police of a certain fact which incriminates the Plaintiff and the police as a result decides to prosecute the Defendant.

 

Termination of Prosecution in Plaintiff’s Favour

This is the second requirement for a successful action in malicious prosecution. This requirement is satisfied in the following situations;

  1. Where the plaintiff was convicted at lower court but set aside on appeal. See the case of Hernimal v. Smith(1938)AC 305
  2. Where the accused person was not convicted of offence charged but convicted of a lesser charge. See Boler v. Holder(1887) 51kb pg 227
  3. Where he was acquitted on ground of technicality. See Wicks v. Fentham (1791) 100ER
  4. If the prosecution for any reason withdraws the charges. See Hicks v. Lee (1839) 150 ER pg. 115
  5. Where the Attorney General issues nolle proseque. See the case of Yeboa v. Boateng, Ejikeme v. Nwosu, Eshemo v. Julius berger (Nig)

 

Lack Of Reasonable and Probable Cause

It is difficult to define reasonable and probable cause. In the case of Hernimal v. Smith, the House of Lords adopted the definition given in Hicks v. Faulkner by Hawkins. J as follows, “an honest belief in the guilt of the accused based on full conviction, founded upon reasonable grounds of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and courteous man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.”

The following principle have been established by other authorities:

  1. The overall question is both objective and subjective: whether a reasonable man who has knowledge of the fact known by the defendant at the time of instituting the prosecution would have believed the plaintiff to be probably guilty of the alleged crime. Whether the defendant honestly believed that the plaintiff was guilty.
  2. Where the defendant acts honestly under a mistaken impression as to the true fact in a claim to be judged on those mistaken fact. See Glinksi v. Mclver (1962) AC 726
  3. Reliance of fact must be based on facts known at the time he initiated the prosecution which in fact he believes are reasonable and probable cause for the prosecution. See Turner v. Amblak (1847) 116 ER pg. 98
  4. Where reasonable and probable cause exists at the time of instituting the prosecution but some other fact later came to light which shows that the prosecution is groundless. If this new facts are not disclosed by the defendant to the court, the defendant will be liable. See Tims v.  John Lewis & co
  5. Where the defendant who believes that the plaintiff is guilty lays the fact in full and fairly before either a council or a police is advised by either of the two that a prosecution is justified, he will be held to have had reasonable and probable cause for the prosecution but note that there is no invariable rule to this believe.
  6. The fact that the plaintiff was convicted for trial by a magistrate or even where he was convicted at court of first instance and only acquitted on appeal is not conclusive that it was a reasonable and probable cause of prosecution. See Balogun v. Amubikanhu (1989) 3 NWLR pt 107,p. 18 SC
  7. B: it is for the plaintiff to establish absence of reasonable and probable cause and not for the defendant to establish it’s presence. Therefore, it is not a defence as some of the above propositions tend to imply. The plaintiff may do this by showing that the fact relied on by the defendant pointed so overwhelmingly to the plaintiff’s innocence that no reasonable person could possibly have believed him to be guilty.

In  Yeboah v.  Boateng (1963) GLR 182, the plaintiff (a paramount chief)  was offended by reason of payment of tribute by the defendant who were his two tenants to another traditional ruler without the consent of the plaintiff. The matter was referred to arbitration by parties’ consent and the defendants were ordered to apologize and pay pacification fee which they did. The defendant subsequently lodged complain of extortion of money against the plaintiff. Upon investigation, the police decided not to prosecute because nothing criminal was disclosed. Being dissatisfied, the defendants instituted a private prosecution before the district magistrate who found that a prima facie case had been made out and committed plaintiff for trial. Subsequently, the Attorney General entered a nolle proseque and the plaintiff was discharged. The Supreme Court of Ghana held that :

  1. The defendants are clearly the prosecutors.
  2. That the entry of nolle proseque sufficiently terminated the proceedings in favour of the plaintiff.
  3. The persistence of the defendant that the plaintiff must be prosecuted after being informed by the police that the facts did not disclose the commission of any criminal offence was not in itself sufficient evidence of malice or of reasonable and probable cause but since it was clear that the defendants knew that the payment of passification fee was lawful according to custom, they could not genuinely have believed in the plaintiff’s guilt and therefore could not have had reasonable and probable cause for the prosecution.
  4. The fact that the defendants had prosecuted on the advice of a solicitor did not protect them since they had not disclosed to the solicitor the relevant fact that a valid arbitration had been held and that the money they had paid was by way of pacification to the plaintiff in accordance with the established custom.

 

Malice

It is worthy to note that the judicial attempt to define malice has not been completely successful. Malice in this context has a wider meaning than spite, ill will or desire for vengeance.

It is also worthy to note that anger is not the same as malice. Malice therefore includes any motive other than to simply institute the prosecution for the purpose of bringing a person to justice. The moment malicious intent can be established in the purpose of bringing a person to justice, such prosecution may fail.

However, malice and lack of reasonable and probable cause must be proved separately as they are not the same.

 

Relationship Between Malice and Lack of Reasonable and Probable Cause

Malice is honesty of motive while lack of reasonable and probable cause is the honesty of belief in the guilt of the plaintiff. Note further that the two element overlap in the sense that where the defendant does not have honest belief in the guilt of the plaintiff, this will not constitute evidence of malice and lack of reasonable and probable cause.

However,  it is worthy to note also that malice does not supply evidence of lack of reasonable and probable cause.

In effect, if the defendant’s conduct is actuated by malice, he may not be liable for malicious prosecution if he has reasonable cause to believe that the plaintiff is guilty of the crime charged.  See Usifo v. Uke (1958) 3 FSC 59

 

Damages

Finally, the plaintiff must be able to prove that it has caused damage to his reputation, property or person. See Rayson v.  South London company (1893) 2 QB 304.

Defamation was the most litigated tort in the early 1960s. The rule of law of defamation is to ensure that freedom of speech does not outweigh the protection of reputation of individuals.

What is a defamatory statement?

A defamatory statement is one which tends to lower the plaintiff in the estimation of right thinking members of the society generally which may expose him to hatred,  contempt or ridicule or to cause other persons to shun or avoid him or to discredit him in his office, trade or profession or to injure his financial credit.  See the case of Ofoegbu v. Onwuka

In the case of Byrne v. Dean (1937) 1 KB 818 CA, the plaintiff in that case belong to the same gulf club with the defendant. The plaintiff alleged that the defendant had defamed him by putting up a notice in the club to the effect that he (the plaintiff) had made a report to the police that certain illegal gaming machines were kept on the premises of the club. Held: No defamation.

Note further that the term “a particular section of the community” was defined as: a body of persons who subscribe to standards of conduct which are not those of society generally. See the case of Egbuna v. Amalgamated Press Ltd (1967) ANLR 27 In this context, this will not include the colleagues or business associate of a professional person unless there are standard’s of conduct of morality are different from those of right thinking persons generally.

 

TYPES OF DEFAMATION

  1. Slander
  2. Libel

It is worthy to note that the two types of defamation used to be separate tort historically. Today,  they are treated as two aspects of a single tort of defamation.

Also,  there is doubt as to whether defamatory statements can be recorded on disk,  tapes,  CDS can be regarded as libel or slander. Examples of libel are letter,  newspaper publication, photographs, television, etc.

DISTINCTION BETWEEN LIBEL AND SLANDER

Libel is a defamatory statement permanent in form while slander is transitory (temporary) in form. See  Independent Newspaper  Ltd v.  Idiong

It is also worthy to note that libel is always actionable per se ie Plaintiff does not need to prove damage for Defendant to be liable while slander is NOT actionable per se, except in certain situations.

In the case of Nthenda v.  Alade (1974) ECSLR 109, the court rejecting the argument of the defendant counsel that the plaintiff had failed to prove that he had suffered damage and as such his action has to fail. The court has this to say:

“In an action for libel, the plaintiff need not prove malice in law and needs not prove that he had suffered any actual damage as the result of the publication. Both malice and damage can be sued from the publication itself,  in the absence of lawful excuse. ”

Slander is generally NOT actionable per se except in certain situations, which includes:

  1. Where there is imputation of crime: any allegation that the plaintiff has committed an offence punishable by imprisonment is slander actionable per se.

Here,

a.) There must be a direct assertion of guilt.

b.) The words used must be looked at in the context in which they were spoken.

c.) The alleged crime must be punished corporally. See Farashi v.  Yakubu where the plaintiff claimed damages for slander in respect of words uttered by the defendant imputing that the plaintiff had committed adultery with the defendant’s sister in law.  Here,  actual damage was not proved as the learned judge found out that by section 387 of the Criminal code adultery by a man was punishable by imprisonment but the section further provides that the man concerned must be subject to the native law and custom in which extra marital intercourse was recognized as a crime.  Evidence was adduced which showed that under the local law and custom to which the plaintiff was subject, adultery was not a crime since it was not punishable by canning unless the adulterer fails to pay compensation to the woman’s husband.  The court held that the position was similar to imprisonment in default of paying a fine and that the slander was accordingly not actionable without proof of actual damage.

  1. Where there is imputation of certain disease: It is actionable per se to say that the Plaintiff is infected with certain contagious or repulsive disease since this would cause other persons to avoid him.
  2. Where there is an imputation of unchastity or adultery: Unchastity has been held to include lesbianism, homosexualism, etc. Section 1 of Slander of Women Act 1891 has made such an imputation concerning any woman or girl actionable per se. See Kerr v.  Kennedy (1942) 1 KB 409
  3. Where there is an imputation affecting professional or business reputation:

Under this heading, the statement must be disparaged in the way in which he/she exercises his profession. For example, if it is said that a lawyer does not know the law or that a surgeon is incompetent or that a trader is bankrupt. See the case of Hopwood v.  Muirson.  It should be noted that at common law,  slander bothering on this end will not be actionable per se unless it disparages the plaintiff in the way he/she exercises his/her profession. See the case of Jones v.  Jones. Note further that this common law rule is still in force in the Northern state of Nigeria whereas it has been altered in the Western,  Eastern and Lagos state by statutory provisions fashioned in line with the English Defamation Act 1952.

 

VULGAR ABUSE

Note that words of heat and anger are not actionable in slander.  Whether particular words constitutes slander or mere other abuse depends on circumstances in which the words are spoken. Thus, in Bakare v. Ishola (1969) WRNLR 106, there had been a fight between the parties and in the heat of anger, Bakare called Ishola a “thief” and “ex-convict”. Held: the words complained of were mere vulgar abuse as they had been spoken in the heat of anger. Hence, he was not liable in slander

However, where a vulgar abuse alleges a specific act or alleges that the Plaintiff committed a specific offence or wrongdoing, then the statement will not be regarded as a mere vulgar abuse. In Ibeanu v. Uba, the Defendant in the presence of onlookers alleged the Plaintiff of bringing thieves to his house to steal his goat. Held: the Defendant was liable in slander.

 

 

WRITTEN ABUSE

Generally, abuse when written is defamatory, unless the words do not amount to defamation or will not be understood as such.

 

REMOTENESS OF DAMAGE IN DEFAMATION

In accordance with the general tort principle, the damage complained of must not be too remote. The Plaintiff may recover compensation only for the consequence of the Defendant’s defamatory statement which were foreseeable.

 

ELEMENTS OF DEFAMATION

The plaintiff must prove the following in an action for defamation:

  1. That the words were defamatory
  2. That the words referred to the plaintiff
  3. That the words were published to at least one person other than the plaintiff

 

 

 THAT THE WORDS WERE DEFAMATORY

The determination of whether words were capable of being defamatory in the eyes of a reasonable man and whether the words were defamatory lies with the judge. See The sketch public. Co Ltd v. Ajagbe.

The court will look at the standard of a right thinking man and also the clear and natural meaning that a reasonable person would give them.

Where the words are clearly defamatory, this is a simple task. For example, “Ade is an armed robber”. The task however becomes considerably difficult where the words complained of are capable of two meanings  ie derogatory of the plaintiff or an innocent meaning.

In the law of defamation, innuendos are often considered and they are of two types

  1. True/Legal innuendos: These are words not defamatory on their face but have a defamatory meaning that could be understood by people who knew the plaintiff from the words. See the case of Akintola v. Anyiam (1961) 1 ANLR 529. For an action or a plea of innuendo to succeed, details of all such meanings must be explained in the pleadings and the plaintiff must establish that the words might be established in a defamatory sends by person who has knowledge of special facts.
  2. False/ Popular innuendos: These are words that are defamatory because of defamatory influence, which reasonable persons generally would draw them from. In Mutual Aid Society Ltd v. Akerele, the Court held that the auction sale advert was defamatory on the Plaintiff. It was an innuendo that the Plaintiff’s property was being auctioned in order to pay his debt. This was injurious to the Plaintiff’s credit.

THAT THE WORDS REFER TO THE PLAINTIFF

The Plaintiff must prove that the defamatory statement refers to him. Here, the Plaintiff’s initial, drawing, office-post, verbal description is enough to establish this.

To this end, Fatayi Williams JSC in Dalumo v. The sketch publishing co ltd quipped that, in an action for defamation, it is not necessary that the words should refer to the Plaintiff by name. Provided the words could be understood by reasonable persons to refer to him…

Similarly, in Dafe v. Tsewinor, the defamatory word was referring to a minister from “Aboh”. It was held that the statement was capable of referring to the plaintiff who was a minister of finance and the only minister from Aboh in their government.

Note however that if a class of people is defamed, no single individual can bring an action on defamation except if the class is so small and ascertainable as seen in Dalumo v. The sketch publishing co. Ltd (1972) ANLR 567.

THE WORDS MUST BE PUBLISHED TO AT LEAST ONE PERSON OTHER THAN THE PLAINTIFF

It is not actionable in civil law to make a defamatory statement to the plaintiff alone out of hear shot of a third person or to write a letter to the plaintiff containing defamatory material. Note that the plaintiff showed a potentially defamatory letter to someone else, there is a defence of “volenti” since it is the plaintiff and not the defendant who has published the statement.

If the libel is written to the person that was libelled, it is not defamation. However,  if it is shown to a third party, the defence of “volenti” can suffice. See the case of Okotcha v.  Olumese (1967) FNLR 174

By publication is meant that the making known of the defamation to persons other than the person to whom it is written.  The writing of a libel to the person libelled does not constitute publication for the purpose of a civil action. Note further that an action must fail if publication of the defamatory matter is not proved.  See O. N Nsirin v.  E. A Nsirin. Note further that every repetition of a defamatory statement is fresh publication which will give rise to a course of action.

Instances that will not amount to publication are:

  1. Publication of defamatory words to persons who could not understand the words
  2. Statement of one’s spouse
  3. Publication to a person whom the defendant did not intend to publish and to whom he could not reasonably have foreseen the words to be published. See Huth v. Huth or where a third party unexpectedly overhears the defendant.

Situations that would amount to publication are:

  1. Words written on post card or open message
  2. Defamatory message placed in an envelope and addressed to the wrong person. See Hebditch v. Macllwaine (1894) 2 QB 54
  3. Speaking in a loud voice against the plaintiff so that people nearby can hear. White v. J. F Stone
  4. Sending a letter to the plaintiff in circumstances when it is likely to be opened by a third party. Pullman v. Hill (1891) 1 QB 524
  5. Making defamatory statements to the spouse of the plaintiff

 

MALICE

In many areas of law of tort,  the presence or absence of malice is irrelevant and if it is relevant, it may only go to enhancing the amount recoverable in damages. However, in defamation actions, it may be especially important to consider whether the statement was published maliciously not only to allow the plaintiff to recover a higher reward of damages but because it is a necessary element in the law itself. Malice as it is use in the law of defamation means that the publication was made spitefully or with ill-will or recklessness as to whether it was true or false.  The bad feeling must have led to the words being published and must in particular have been directed towards the plaintiff. Note that the presence of  malice will destroy the defences of justification, unintentional defamation,  fair comment on the matter of public interest and qualified privilege.

 

DEFENCES

  1. Un intentional Defamation : This defence does not avail a defendant at common law in an action for libel or slander. See Hulton & Co v. Jones (1910) AC 20 HL

Note also that by virtue of Section 6 of Defamation law 1961 for Lagos state, a defence is provided as long as the words were published innocently. Instances where words are published innocently within the statutory definition are:

-Statements must have been made innocently.

-The words were not defamatory on the face of them and the publisher did not know of any circumstances by virtue of which they might be understood to be defamatory of the plaintiff. In either case, the publisher must have exercised all reasonable care in relation to the publication.

-If the defendant is prepared to claim that the words were published innocently, he/she may make an offer of amends which includes an offer to publish a suitable correction and apology or to take reasonable steps to notify persons to whom copies have been distributed that the words are alleged to be defamatory.

-If the offer of amend is accepted, there is a bar to further action for defamation.

-If the offer of amend is rejected, there will be a defence if the defendant can prove:

  1. That the publication was innocent and there was no negligence
  2. That the offer of amends was made as soon as practicable after the complaint
  3. That if the defendant was not the author of statement, that the defendant or the author who made the statement made it without malice.
  4. Innocent Dissemination: The defence of innocent dissemination is designed to protect those who are authors or publishers of libels such as booksellers (who sell libelous materials), libraries or museums which exhibit libellous goods or vendors who sell libelous newspapers. See the case of Vizetelly v. Mudi’s selects libraries ltd(1500) 2QB 170. See further Awolowo v. Kingsway stores ltd (1968) 2ANLR pg 217
  5. Justification of Truth : If the statement made about the plaintiff is true, an action for defamation cannot succeed. This is not withstanding that the defendant was acting due to malice or some improper motives. See Onwuchekwa v. Onovo (1974) 12 CCHCJ 1919. It must however be noted that the burden of proof is on the defendant because the law presumes that it is false. Note further that it is sufficient if the defendant proves his statement to be true in substance. In other words, if the statement is inaccurate only in minor details, the defence will still succeed. See Edwards v. Bell (1824) 130 ER. Note further that where the defendant fails to establish the defence of justification pleaded, the failure will usually inflate any damages awarded against him. The court treating it as an aggravation of the original injury. See Eyo v. Insta Nigeria Information Service (1963) TENLR 144 at 148. Note however that at common law,  the defence of justification will fail altogether if the defendant failed every charge of the defamatory allegation. Note also that this rule has been modified by Section 7 of defamation law 1961 applicable in Lagos and in various defamation laws of the old western and old Eastern states which contains identical provisions.

Note finally that where the defendant repeats a defamatory statement originally made by someone else, he must prove that the statement was true and not merely that it was made.

  1. Fair Comment: This defence is designed to protect statements of opinion on matters of public interest and it is frequently relied on by the press though it is not the exclusive reserve of the press.

The requirement for this defence is that it is only applicable in matters of public interest like

  1. Govt affairs,
  2. Administration of justice, affairs of public institutions,

iii. Management and affairs of public institutions. See the case of Nthenda v. Talabi

  1. Church matters. See the case of Oke v. Gansallo
  2. Conduct of private businesses which affects the community at large. Hitton v. North Eastern New
  3. Anything which may fairly be said to invite comments or challenge public attention.

Also,  the statement must be a comment or opinion and not an assertion of fact.

The comment must also be based on facts set out accurately. See Bakare v.  Olumide and African Press Ltd v. Ikejiani

Also, the comment must be honestly made. Note however that the fact that the comment is violent, exaggerated, biased or clearly wrong will not affect the defence provided it was honestly made. The test here is subjective to the defendant and not based on what a reasonable man will consider fair. However, it will be based on whether the defendant honestly held the view which was express. It should be noted that an imputation of corrupt or dishonorable motive made against the plaintiff will not be protected by the defence of fair comment unless it was shown by the defendant that he honestly believed the imputation to be true and that he had reasonable foundation for his belief. The defence must not be actuated by express malice. See the case of Africa Newspapers Ltd v. Coker and Bakare v.  Ibrahim

  1. Defence of Absolute privilege: Certain occasions abound when the law regards freedom of speech as essential and provides a defence of absolute privilege which can never be defeated no matter how false o defamatory the statement may be and however maliciously it has been made.

Communications covered by the defence of absolute privilege is statement made in the course of judicial proceedings by judges,  jurists. Se Foley e v. Asfour

Note that the privilege extends to other tribunals recognized by law. See Majekodunmi v. Olopade.

Occupier’s liability is the tort which deals with the duty of care of an occupier or controller of a premises, fixed or movable structures to person’s who visits or enter thereon, other than criminals. It is worthy to note that there are three categories of person that can come into the premises of an occupier.

  1. INVITEE

This is a person who is on the premise of an occupier by express or implied invitation of the occupier. He comes into the premises or property with the consent of the occupier.

  1. LICENCEE

This is person who has the permission of the occupier to be on the premises for a purpose in which the occupier has no interest.

 

  1. TRESPASSER

He is a person who enters or interferes with the landed property of another without legal justification. In Addie & sons v. Dumbreck (1929) AC 358 HL, the Court held that: “A trespasser is a person who goes on the land without invitation of any sort whose presence is either unknown to the proprietor or if known, practically objected to.”

The golden rule in this tort however is that a person who is in control of a property must conduct himself in such a manner as to avoid causing injury to others.

The liability of an occupier under this tort is based on the law of negligence involving damage caused by the breach of duty of care.

The purpose of this liability is to make an occupier liable for injury suffered on his premise or property as a result of negligence or state of misproperty.

 

WHO IS AN OCCUPIER?

In the English case of Wheat v. Lacon (1966) AC 552 HL, it was held that an occupier is a person who has possession, occupation, use or some degree of control of a land, premises, fixed or movable structures. Thus, an occupier needs not be an owner.

An occupier does not also need to be physically present in the premises, to be regarded as an occupier.

 

THE LAWS GOVERNING OCCUPIER’S LIABILITY

In Nigeria, the laws governing occupier’s liability are common law and statutory provisions.

At common law, the liability of an occupier to a person coming into his premises, depends on the category of entrant the person falls into. The categories of entrant recognized at common law are;

 

  1. INVITEES

This is a person invited to enter a property by an occupier for a common interest between him and the occupier.

At common law, an occupier has a duty to exercise reasonable care for the safety of his invitees from dangers which he knows or ought to know about. This was the position of the law in Stone v. Taffee (1974) 3 AER 1016 CA.

N.B: The invitee is also expected to exercise reasonable care for his own safety while on the premises.

  1. LICENCEES

A licencee is a person who has the permission of an occupier to be on a premises for a purpose in which the occupier has no interest.

However, a mere license is always revocable. The general rule here however is that a licencee must take the premises as he finds it. This is subject to a duty on the occupier to:

  1. Warn the licencee of concealed dangers by putting up notices like “beware of dogs”, “beware of snakes”, etc.
  2. A duty not to set traps
  • A duty not to injure the licencee intentionally or recklessly.

 

3.TRESPASSERS

A trespasser is a person who enters or interferes with the landed property of another person without legal justification.

In Addie & sons v. Dumbreck, it was held that the duty of care of an occupier to a trespasser is not to maliciously injure him. A trespasser however enters a land at his own risk.

 

STATUTORY PROVISIONS ON OCCUPIER’S LIABILITY

The two main statutes here are the English Occupier’s liability statute of 1958 and English Occupier’s liability statute of 1984. The statute abolished the distinction between the categories of entrants and streamlined the various duties applicable to each category. The statute also introduces a new category of entrants called “visitors”.

The Law Reform (Torts) Law, Lagos State is modelled on this English statute and it is applicable to every state in Nigeria. However, that of Lagos is the most prominent.

Section 7(2) of the Lagos State law defines a “Visitor” as “persons who would at common law be treated as invitees or licencees.”

 

DEFENCES FOR OCCUPIER’S LIABILITY

  1. That he gave adequate notice or warning of danger
  2. Consent
  3. Act of stranger
  4. Act of God
  5. Contributory negligence

The rule of law in Hedley Bryne Ltd v. Heller Partners Ltd (1964) AC 465 holds away here. This is to the effect that a person who makes a careless misstatement to another may be liable to that other person in negligence for loss suffered as a result of reliance upon the statement.

According to Prof John Salmond, the tort of deceit consists in the act of making a willfully false statement with the intent that the Plaintiff shall act in reliance on it, and with the result that he does so act and suffers harm in consequence.

As a wrong, deceit cuts across many areas of law such as tort, contract, criminal law, etc. Thus, a false representation or misrepresentation may create concurrent rights of action in tort, breach of contract, etc.

The essence of deceit, whether in law of tort, contract or criminal law is fraud ie the Plaintiff was defrauded or duped and he suffered loss.

When compared with the tort of negligent misstatement under Hedley Bryne v. Heller Partners Ltd, the development of deceit as a separate tort dates back to the decision on Parsley v. Freeman (1789) 100 ER 450. Incaso, the Defendant falsely represented to the Plaintiff that a certain man was credit worthy and that the Plaintiff could safely sell goods to him on credit. The Plaintiff suffered damage as the said person was unable to pay. The Plaintiff sued the Defendant for deceit. Held: the Defendant was liable for the tort of deceit, for a false representation on which the Plaintiff relied on and suffered damage.

 

ELEMENTS OF TORT OF DECEIT

  1. That the Defendant made a false representation of facts
  2. That the Defendant knew that the representation was false
  3. That the Defendant intended the Plaintiff rely on the information
  4. That the Plaintiff relied on the information
  5. That the Plaintiff suffered damage

 

 

 

  1. FALSE REPRESENTATION

A false representation may be by words whether written or spoken or by any conduct. A situation of false representation by words was seen in James v. Mid-motors Nig.co Ltd (1978) 2 LRN 187 SC, where the plaintiff customer bought a motor vehicle on hire purchase from the Defendant company. Subsequently, the manager of the Defendant told him that as part of the conditions for it’s delivery, the Plaintiff has to insure the vehicle. The Plaintiff paid a premium and he was issued a cover note by a non-existent company. The Plaintiff sued for damages. Held: the Defendant company was vicariously liable for deceit committed by the manager.

Worthy to note is that as a general rule, mere silence is not actionable in tort of deceit as silence alone does not amount to fraud, except a statute makes certain disclosures mandatory. Where there is silence, the applicable principle is “caveat emptor” is “let the buyer beware”.

Also, active concealment however may be a sufficient ground for legal action in deceit as seen in Derry v. Peek (1889) 14 AC 337.

  1. THAT THE DEFENDANT KNEW THAT THE REPRESENTATION WAS FALSE

For a Defendant to be liable for deceit, the Defendant must have made the deceitful statement knowingly or without belief in it’s truth or recklessly. That is , the Plaintiff must prove that the Defendant did not honestly believe the statement to be true.

The requirement that the Defendant knew that his statement was false was laid down by Lord Herschell in Derry v. Peek saying that; “fraud is proved when it is shown that a false representation has been made knowingly or without belief in it’s truth or recklessly careless whether it be true or false.”

 

  1. THAT THE DEFENDANT INTENDED THE PLAINTIFF TO RELY ON THE INFORMATION

Here, the Plaintiff must prove that the statement was made by the Defendant with the intention that it should be relied on or acted upon by the Plaintiff.

However, it is not necessary to show that there was an intention to cause damage to the Plaintiff. An intention that the Plaintiff should rely on the statement is sufficient.

In Landridge v. Levy (1837) 150 ER, the father of the Plaintiff bargained with the Defendant to buy a gun for himself and his sons. The Defendant falsely warranted the gun to have been made by a reputable firm well known for quality. Whereas, in truth the gun was bad, unsafe and not made by the company. Held: He was liable in tort of deceit as the statement of the Defendant as to the soundness of the gun was intended to be communicated and acted upon by the Plaintiff.

 

  1. RELIANCE BY THE PLAINTIFF

To succeed in an action for deceit, the Plaintiff must prove that he relied on or acted upon the false representation to his detriment. Here, it is not a defence that the Plaintiff could have discovered the true position of the statement made upon investigation.

In Sule v. Aromire, the Defendant sold a certain land to the Plaintiff and issued him a title deed of an entirely different parcel of land. In an action for deceit, it was held that the Defendant was liable. Furthermore, it is not a defence that the Plaintiff could have made proper investigation.

  1. THAT THE PLAINTIFF SUFFERED DAMAGE

The tort of deceit is not actionable perse and so the Plaintiff must prove that he suffered some actual damage.

In most cases, the damage will consist in financial loss, but there is nothing to prevent recovery of damages to property.

 

DEFENCES FOR THE TORT OF DECEIT

  1. Where the party that made the representation made it in good faith and honest belief in it’s truth
  2. Where the party whom representation is made to actually knew that the representation was false and could not have been acting on it.
  3. If the Defendant can show that Plaintiff did not suffer any damage
  4. Where the Plaintiff has an obligation to verify information but didn’t.
  5. Where the defendant is not under any obligation to reveal any info and keeps quiet.

 

REMEDIES available are recission and damages

Passing off is the false representation of one’s product or business as that of another person, thereby deceiving buyers to patronize it.

The tort of passing off is designed to protect a person’s business interest from the unfair trade practices and sharp practices of other persons. It’s objective is to protect reputation and Goodwill a business has built up for itself.

WHEN DOES ACTION FOR PASSING OFF LIE?

In the case of Warnink v. Townsend & Sons, Lord Diplock stated FIVE characteristics or guidelines for determining when action lies in passing off which are:

  1. Whether there is a misrepresentation
  2. Made by the Defendant in the course of trade
  3. To prospective customers
  4. Which is calculated to injure the business and Goodwill of another person; and
  5. Which cause damage to that person’s business and Goodwill or will likely to do so.

 

 

COMMON FORMS OF PASSING OFF

The common forms of passing off are:

  1. TRADING WITH A NAME RESEMBLING THAT OF THE PLAINTIFF

In this form of passing off, the Defendant is usually engaged in the same type of business as the Plaintiff and he uses the Plaintiff’s name or a name closely resembling that of the Plaintiff, and as a result, the public is confused and misled into thinking that they are one or that it is an extension of the other.

This was the situation in Niger Chemists Ltd v. Nigeria Chemists (1961) ANLR 171 where the Court held that when two firms trade in the same town, in the same street and in the same line of business, one calling itself “Niger Chemist” and the other “Nigeria chemist”, there must be a grave risk of confusion and deception.

Similarly, in Ogunlende v. Babayemi (1971) 1 UILR 417, the Plaintiff who were building and civil engineering contractors carrying on business as “mercury builders” were granted an injunction to restrain the Defendant from carrying on a similar business under the name “mercury builders of Nigeria ltd”.

  1. MARKETING A PRODUCT AS THAT OF THE PLAINTIFF

The tort of passing off is committed when a Defendant sells his goods off to people by stating falsely that the goods are produced by the Plaintiff, whereas they are not. The Defendant by advertising and selling his goods by falsely stating that they are manufactured by the Plaintiff, directly but wrongly benefits and profits from the Goodwill and reputation already built by the Plaintiff’s business. This was the situation in Lord Byron v. Johnston (1816) 35 ER 851 where the Defendant publishers were restrained from advertising and selling a book of poems with the Defendant’s name “Lord Byron” written on it.

 

  1. MARKETING GOODS WITH A NAME RESEMBLING THAT OF THE PLAINTIFF’S GOODS

It is a tort of passing off for a Plaintiff to produce or market his goods with a name closely resembling that of the name of the Plaintiff’s goods with the result that customers are confused and the Defendant’s goods are mistaken as made by the Plaintiff and are bought as product of the Plaintiff.

Here, the protection of trade name is important.

Thus, in Hines v. Winnick (1947) Ch 708, the Plaintiff musician who used to broadcast his radio program under the name “Dr Crock and his Crack Pots” o gained an injunction to restrain the Defendant from featuring another band on the programme, using the same name.

 

  1. IMITATING THE APPEARANCE OF THE PLAINTIFF’S PRODUCT

It is passing off for the Defendant to do anything, which makes his product appear like the Plaintiff’s product. This passing off includes any copying of the likeness or appearance of the Plaintiff’s product in a manner to confuse the public.

In U.K Tobacco co.ltd v. Carreras Ltd, the Defendant who were marketing cigarettes called “Barrister” on which packet was a white man wearing Barrister’s wig and gown were restrained from imitating the appearance of the Plaintiff’s cigarette called “Band-master” on which packet was a man in a band master’s uniform.

Similarly, in De facto Works Ltd v. Odumotun Trading co. Ltd, the Plaintiff bakers who sold bread wrapped in yellow and brown paper with the name “De facto”  written in large chocolate colour obtained an injunction to restrain the Defendant from marketing their bread wrapped in yellow and brown paper with the name “odus” written in large chocolate colour.

 

  1. MARKETING PRODUCTS WITH THE PLAINTIFF’S TRADEMARK OR ITS IMITATION

It is passing off for a Defendant to market his goods using the Plaintiff’s trademark or it’s imitation.

Trademark is any design, picture, mark, name or other merchandise mark affixed to goods which identifies those goods with the manufacturer or seller.

Trademarks are usually registered and also protected under the Merchandise Marks Act 2004.

 

LIMITATIONS TO PASSING OFF

  1. It is not passing off to market goods under purely descriptive name indicating the nature of the goods sold and not that they are the merchandise of any particular person.
  2. It is not passing off to imitate the appearance or shape of the Plaintiff’s product where such appearance or shape is necessary for the better performance of the type of product for greater efficiency in handling or processing it.

In J.B Williams co v. Bronnley & co. Ltd, an action by the Plaintiff company to restrain the Defendant from using the normal shape of a shaving stick container to package it’s brand of shaving stick failed. This was also the position of law in Trebor Nig. Ltd v. Associated Industries Ltd (1972) NNLR 3 60.

3. It is not passing off to use a purely geographical name, already used by the Plaintiff.