Table of Contents
HIRE PURCHASE AGREEMENT .......................................................................................................................... 3
FORMATION OF HIRE-PURCHASE AGREEMENT ....................................................................................... 4
PROHIBITED PROVISION IN A HIRE PURCHASE AGREEMENT .............................................................. 4
THE MECHANICS OF HIRE PURCHASE ......................................................................................................... 6
Relationship between the finance company and hirer ....................................................................................... 6
Relationship between the Retailer and hirer. ..................................................................................................... 7
Relationship between the Finance company and Retailer ................................................................................. 7
INSURANCE ............................................................................................................................................................ 7
FORMATION OF INSURANCE ......................................................................................................................... 7
TERMS OF INSURANCE .................................................................................................................................... 8
PRINCIPLES OF INSURANCE ........................................................................................................................... 8
OTHER TERMS OF INSURANCE ...................................................................................................................... 9
TYPE OF INSURANCE ..................................................................................................................................... 10
IMPORTANCE OF INSURANCE ..................................................................................................................... 11
THE LAW OF TORT .............................................................................................................................................. 11
TERMINOLOGY ................................................................................................................................................ 12
Tort Distinguished From Crime....................................................................................................................... 12
Tort Distinguished From Contract ................................................................................................................... 12
REMEDIES AVAILABLE IN TORT ................................................................................................................. 13
INJUNCTION ................................................................................................................................................. 13
ACTION FOR SPECIFIC RESTITUTION .................................................................................................... 13
SELF HELP ..................................................................................................................................................... 13
TRESPASS .............................................................................................................................................................. 14
CONVERSION DISTINGUISHED FROM TRESPASS ................................................................................... 14
TYPES OF TRESPASS....................................................................................................................................... 14
Trespass to person ........................................................................................................................................... 14
Trespass to Land .............................................................................................................................................. 16
Trespass to goods/chattels ............................................................................................................................... 16
NUISANCE ............................................................................................................................................................. 16
TYPES OF NUISANCES ................................................................................................................................... 16
Private Nuisance: ............................................................................................................................................. 17
Public Nuisance: .............................................................................................................................................. 17
REMEDIES UNDER NUISANCE ..................................................................................................................... 17
DEFAMATION ....................................................................................................................................................... 17
TYPES OF DEFAMATION ............................................................................................................................... 18
HOW TO PROOF DEFAMATION .................................................................................................................... 18
DEFAMATION OF A CLASS ........................................................................................................................... 18
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DEFENCES IN DEFAMATION ........................................................................................................................ 19
INNUENDO ........................................................................................................................................................ 19
NEGLIGENCE ................................................................................................................................................ 19
Elements Required To Establish “Prima facie” Case Of Negligence .................................................................. 19
Ingredient For Negligence ............................................................................................................................... 20
PROFESSIONAL SKILL AND BREACH OF DUTY ....................................................................................... 20
RES IPSA LOQUITOR ....................................................................................................................................... 20
Conditions For Application ............................................................................................................................. 20
Defences in negligence .................................................................................................................................... 20
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HIRE PURCHASE AGREEMENT
Hire purchase agreements and conditional sales are governed by the Hire Purchase Decree,
1974(NRCD) 292.
This purchase decree came up as a result of the difficulties the nation encountered in establishing
the difference between sale of Goods, Hire Purchase and conditional sale agreement exclusively.
A Hire purchase is defined by the Hire Purchase Decree, 1974 as ‘’ an agreement for the bailment
of goods under which the Bailee may buy the goods under which the property in the goods will
or may pass to the Bailee’’.
A Hire Purchase contract generally takes the form of bailment under which the goods are hired,
together with an option to purchase subject to the conditions of the agreement being complied
with.
It may also be defined as the temporal transfer of possession of goods by the owner/seller /lessor
/bailor to another person called the hirer/bailee/buyer/lessee.
There is a consideration which is in the form of payment by instalment. In Hire purchase
agreement property in the goods passes to the hirer if the terms of the agreement are kept and the
buyer exercises the option to purchase the goods.
The decree also defined a hirer as ‘’the person who takes or has taken goods from an owner under
a hire purchase agreement and includes a person to whom the hirer’s right or liabilities under the
agreement have passed by assignment or operation of law’’.
The owner is defined as the ‘’person who lets or has let goods to a hire under a hire purchase
agreement and includes a person to whom the owners right or liabilities under the agreement have
passed by assignment or by operation of law.
Law dictionary defines Bailment as ‘’ A delivery of goods by one person, the bailor to another
person, called the bailee, for purpose under a contract, express or implied, that after the purpose
has been fulfilled, they shall be redelivered to the bailor, or otherwise dealt with according to his
directions, or kept until he reclaims them.’’
For instance, AB Church holds church services on the compound of RC JSS. Consequently, they
are compelled to use canopies any time they meet.
AB Church negotiates with Mrs. Pee who stores a lot of canopies for hire and the church pays
money for the use of the canopies.
This arrangement is called bailment. Mrs. Pee is the bailor and AB church is the bailee.
In hire purchase, it is bailment with an option to purchase.
A conditional sale agreement means an agreement for the sale of goods under which the purchase
Price or part of it is payable by instalments, the property in the goods is to remain in the seller not
withstanding that, the buyer is to be in possession of the goods and under which certain conditions
specified in the agreement are to be fulfilled by the buyer.
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FORMATION OF HIRE-PURCHASE AGREEMENT
There are certain formalities for hire-purchase agreements that are prescribed under the Hire
Purchase Decree. The first of such requirement is that the hire purchase agreement must be in
writing to make it enforceable.
By the decree, the owner or the seller of the goods will not be able to enforce it unless it is in
writing and signed by the hirer and all parties to the agreement.
Before the agreement is made the owner shall state orally and in writing to the prospective hirer,
the cash price at which the goods may be purchase by him for cash that is ‘’cash price’’ and the
‘‘hire purchase price’’.
Every agreement shall contain according to the Decree:
a. a statement of the cash price and the hire-purchase price of the goods
b. The amount of each instalment by which the price is to be paid and the date or mode of
determining the date upon which each instalment is payable;
c. A description or list of the goods to which the agreement relates sufficient to identify them;
d. A notice, which is at least as prominent as the rest of the contents of the agreement.
A copy of the agreement shall be delivered or sent to the hirer with 14days after the making of
the agreement. An agreement lacking the above requirements is unenforceable.
PROHIBITED PROVISION IN A HIRE PURCHASE AGREEMENT
Any provision in a hire purchase agreement shall be void to the extent that it provides that:
a. an owner or any person acting on his behalf is authorized to enter upon any private land or
premises for the purpose of taking possession of goods which have been let out under a hire
purchase agreement or is relieved from liability for such an entry, or,
b. the right conferred on hirer by Section 5 to terminate the hire –purchase agreement is excluded
or restricted, or any liability beyond that imposed by Section 6 is imposed on a hirer by reason of
the termination of the hire on a hire purchase agreement by him or under that section or
c. a hirer, after the termination of the hire-purchase agreement or the bailment in any manner
whatsoever, is subject to a liability which exceeds the liability to which he would have been
subject if the agreement had been terminated by him under this Decree, or
d. any person acting on behalf of on owner or seller in connection with a hire-purchase or
conditional sale agreement is treated as or deemed to be the agent of the hirer or buyer; or
e. an owner or seller is relieved from liability for the acts or defaults of any person acting on his
behalf in connection with a hire-purchase or conditional sales agreement
SECTION 5 RIGHT TO TERMINATE
Like any other contract, the hirer or buyer in a hire purchase or conditional sale agreement can
terminate the agreement.
The hirer notwithstanding anything in the agreement be entitled to terminate the agreement by
given written notice of termination to any person entitled to receive payments under the
agreement.
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SECTION 6: LIABILITIES OF HIRER OR BUYER AFTER NOTICE OF
TERMINATION
1.Where the hirer terminates the agreement by virtue of Section 5, he shall be liable to pay the
difference between the total of the sums paid and one- half of the Hire Purchase or total purchase
price, or if the agreement specifies a lesser amount, he shall be liable to pay the amount so
specified.
2.Where an agreement has been terminated under Section 5, the hirer shall return the goods at his
own expense to the premises from which they were originally supplied to him. The owner may
also direct him to send the goods to a different premise but in that case, the owner will bear any
additional expense.
3.Where an agreement has been terminated under Section 5 the hirer, if he has failed to take
reasonable care of the goods shall be liable to compensate the owner for any loss or damages
caused by such failure.
4.Where a hirer, having terminated agreement under Section 5, wrongfully retains possession of
the goods, then, in any action brought by the owner to recover possession of the goods from the
hirer the court, unless it is satisfied that having regard to the circumstances it would not be just
and equitable to do so, shall order the goods to be delivered to the owner without giving the hirer
an option to pay for the goods
SECTION 7: HIRER OR BUYER MAY COMPLETE AGREEMENT
1. The hirer under a hire-purchase agreement may give notice in writing to the owners of his
intention to complete the purchase of the goods by paying or tendering to the owner on a
specified day the net balance due under the agreement, and having given such notice may
complete the purchase accordingly on the day specified.
2. For the purpose of sub-section (1) of this section, the net balance due is the hire purchase
price originally payable under the agreement less any amount paid or provided, whether
by cash or buy other consideration, by or on behalf of the hirer under the agreement.
3. The right conferred on the hirer by this section may exercise by him: a) At any time during
the continuance of the agreement, or b) Within twenty-eight days (28) after the owner has
taken possession of the goods (during which period the owner shall not be entitled to
dispose of the goods) upon paying or tendering to the owner in addition to the net balance
due
I.
the reasonable cost incurred by the owner in and incidental to taking possession of the
goods, and
II.
Any amount property expended by the owner on the storage, repair or maintenance of
the goods
SECTION 8: RESTRICTION ON RIGHT TO RECOVER PROTECTED GOODS
The owner has a right to recover the goods let out to the hirer. The owner’s right to recover the
goods is restricted where the goods have become “protected goods.’’ “Protected goods” are
goods in relation to which the following conditions are fulfilled:
a. That the goods have been let under a hire-purchase agreement;
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b. That one-half of the hire-purchase price has been paid or tendered by or on behalf of the
hirer or a guarantor; and
c. That the hirer has not terminated the hire-purchase agreement, or the bailment by virtue of
any right vested in him. The owner shall not enforce any right to recover possession of
protected goods from the hirer otherwise than by action.
If the owner recovers possession of protected goods without resort to court action, the agreement,
if not previously terminated, shall be terminated, and
a. the hirer shall be released from all liability under the agreement, and shall be entitled to
recover from the owner, in an action for money had and received, all sums paid by the hirer
and any security given by given by him in respect thereof, and
b. any guarantor shall be entitled to recover from the owner in an action for money had and
received, all sums paid by him under the contract of guarantee or under any security given
him in respect thereof.
The court may, upon action by the hirer or buyer, make an order for the return of the goods
to the hirer or buyer and for the re-scheduling of payments due under the agreement.
SECTION 13 –IMPLIED TERMS
1. It is introduced by the court in respect of an action, not specified in the agreement: Not
withstanding any agreement to the contrary in every hire-purchase agreement there shall
be implied:
a) A term that the hirer shall have and enjoy quiet possession of the goods;
b) A term that the goods shall be free from any charge or encumbrance in favour of any third
party at the time when the property is to pass;
c) A term that the owner will have a right to sell the goods at the time when the property is to
pass.
THE MECHANICS OF HIRE PURCHASE
Some retailers finance their own hire purchase agreement but many others rely on credit facility
supplied by finance companies.
From an economic point of view, the retailer sells the goods to the consumer who pays for them
with money borrowed from the finance company.
How ever in law the retailer sells the goods to the finance company for cash price (including
deposit which is paid directly to the retailer by the hirer) and the finance company lets them on
hire-purchase to the hirer for the cash price and interest.
There exists a contractual relationship between the finance company and the hirer, between the
retailer and the hirer, and between the finance company and the retailer.
Relationship between the finance company and hirer
The finance company lets out the property to the hirer on terms that the hirer will pay some
instalments for the bailment of the property.
Both the hirer and the finance company can sue each other when there is breach of their agreement.
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For instance, where the finance company seizes “protected goods” without resort to court, the
hirer can sue to recover all the instal mental payments already and similarly, the owner or the
finance company, can sue the hirer for unpaid instalments which have become due and owing.
Relationship between the Retailer and hirer.
Ordinarily, there is no contractual relationship between the hirer and the retailer.
Where the retailer makes representations to the hirer which could be construed as an express
warranty as to the quality of the goods the hirer may be able to set up a separate contract between
himself and the retailer, the consideration for which is the hirer’s agreement to enter into the hirepurchase contract with the finance company.
Relationship between the Finance company and Retailer
The relationship between the finance company and retailer is one of buyer and seller. The dealer
keeps the deposit paid by the hirer and sells the goods to the finance company for the full purchase
price.
In practice, the goods are never delivered to the finance company but straight to the hirer. The
finance company may require the dealer should act as a guarantor.
The finance company regard themselves as mere bankers and they expect the retailer to step in
and repurchase the goods when there is a default on the part of the hirer.
Hence the dealer is regarded an agent of the finance company.
INSURANCE
Risk may be defined as the possibility or the likelihood of meeting danger, such as injury through
an accident or loss of property through theft and as an exposure to hazard or peril.
A lot of economic activities such as gambling, lotto goes with risk.
There is therefore an obligation to properly manage the possibility of meeting danger if it happens,
so its effects would not be so serious.
Risk management means taking certain precautionary measures to reduce the adverse effect of
risks. In order to ensure risk management, there is the need to undertake an insurance policy in
which the insurer would be able to indemnify or restore you to your original position. Many
successful individuals and institutions as well as business organisation pay great attention to risk
management by making conscious effect to reduce its occurrence and impact.
INSURANCE (Insurance Act, 2006, Act 724)
1. It is a contract in writing whereby the insurer undertakes in return for the agreed
consideration called the premium to pay to another called the insured a sum of money or
its equivalent on the happening of a specified event.
2. It is a contract in writing where an insured agrees in consideration to make periodic or a
single payment called premium to an insurer for the insurer to indemnify the insured on
the happening of an event.
FORMATION OF INSURANCE
Before a contract of insurance is undertaken;
a) The insured identifies the type of insurance policy he contemplates.
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b) He provides information in utmost good faith to enable the insurer to accept to take up
the risk.
c) The insurer should also provide all relevant information in utmost good faith to the
insured. d)The contract should be in writing with all relevant terms and conditions adhered
to by the insured and the insurer.
TERMS OF INSURANCE
1. Insurer: The insurer is the company who agrees to indemnify the insured against any loss
e.g., SIC, GLICO, etc.
2. Insured: The insured is the one who undertakes the insurance policy with the insurer.
3. Beneficiary: The person who receives benefits or proceeds of insurance.
4. Policy: A written contract of insurance.
5. Proposal: The form completed by the insured which is provided by the insurer.
6. Premium: The periodic, single and regular payment or amount provided by the insured to
the insurer.
7. Face: The maximum amount the insurer pays for losses.
8. Risk /Perils: Danger or loss
9. Hazards: Factors contributing to uncertainty
10. Assurance: It is an insurance policy which is concerned with life.
11. Reinsurance: It is the insurance policy taken by an insurer to enable them or to reinforce
its financial capacity to meet its liabilities.
PRINCIPLES OF INSURANCE
UTMOST GOOD FAITH:
The principle of utmost good faith, also referred to as “Uberrimae fidei”, enjoys both parties to
the insurance contract (the insurer and the insured) to provide all necessary and important
information that relates to the contract.
For instance, if Kofi Adoma Wadei, who is 40 years old, completes a life assurance proposal form
and gives an untrue age of 29 years to enjoy an undue advantage from the insurer, the life
assurance contract is void upon discovery of the actual age.
The motive behind this principle is for both parties to give information of trust to each other and
do not hide any relevant information.
INSURABLE INTEREST:
The principal outlines that the insured must have legal or equitable interest in the subject matter
of the insurance, such that he/she derives some benefits from it continue existence. Everybody
has insurable interest in his/her own life and will do everything possible to preserve it from
avoidable losses, sickness or other perils by taking out a life assurance policy.
For instance, there is a mutual insurable interest in the life of a husband and wife, in the sense that
the life of both the wife and husband is mutually important to each other. Also, a creditor has an
insurable interest in the life of a debtor and will do anything he can to protect the debtor’s life and
expose any conspiracy to kill the debtor.
CONTRIBUTION
This principle ensures that the insured does not make any profit or is not over compensated from
the resulting loss suffered by the insured. For instance, if a person ensures the same subject with
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different insurers, in the unlikely event that the subject is lost, the various insurers will contribute
to the worth of the subject matter, but not receiving the same worth from the various companies.
SUBROGATION
The principle means that, when an insured property is lost, after the insured has been indemnified
or compensated by the insurer, the insurer takes the legal title of remains, but not the insured.
Example, if a car insured has an insured value of ₵2 million, when it involves in an accident, and
it is such that the repairs is beyond ₵2 million, the insurer will indemnify the insured of ₵2million
and take legal title of the remains.
INDEMNITY
Indemnity means to restore an insured person who has suffered a loss to his or her original
position. Indemnity is possible in all matters of insurance except life which cannot be restored,
hence, it will only earn some financial award in a form compensation.
PROXIMATE CAUSE
This mean that, the insured will receive compensation from the insurer only for the specific loss
resulting from the specific risk insured against. For instance, an insured can only be compensated
for a house against fire, if the house catches fire, but, if the loss is from burglary, the insured will
not be compensated.
OTHER TERMS OF INSURANCE
Surrender value:
It is an amount (lump sum) of money paid as compensation to the insured beneficiary or the
insured when the insurer decides to give up the right of the contract when it has not come to an
end. In the same vein, the insured may decide to give up his/her right to the contract of insurance
after sometime, of which a lump sum of money will be paid to the insured after the insurer has
made setting deductions from the insured account since it is a breach of contract.
Consequential loss:
These are other losses that an insured will suffer as a result of the loss of an insured subject matter.
Therefore, an insured should extend policy on insurance policy to cover as many consequential
losses as possible. Example, a loss in a company will adversely affect profits, administrative
expenses, staff wages and salaries, construction of new premises etc.
Cover note:
It is note given to the insured upon which the actual insurance policy document will be ready to
cover only the specific risk being insured against.
Underwriting:
It is legal commitment made by one or more insurers who undertake to cover for a specific risk.
It states the fraction of what each insurer will pay if there is a loss in respect of the total amount
of risk.
Arbitration clause:
It is a clause which clearly states the procedures to be used to resolve conflicts arising between
the insured and the insurer.
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Average clause:
A property worth ₵50,000 may have been insured for ₵30,000. If there is a loss of ₵20.000, under
the average insurance, the payment of compensation to the insured will be calculated as:
30000/50000x ₵20,000
=₵12,000
In the normal insurance, the insured will be paid the ₵20,000.
TYPE OF INSURANCE
Fire
It is undertaken to cover losses or damage resulting from the outbreak of fire through
explosion, lightening, gas. Valuable items including stocks, warehouses, cars important
document etc. may be lost. Insurers on the policy look out for information regarding past
experienced of fire outbreak, before they decide to undertake policy or not. This determines
the premium to be charged. In many cases, outbreak of fire resulting from workers riots, earth
quakes, public disorders and other deliberate acts may not be considered for compensation,
unless otherwise stated in the insurance contract.
Marine insurance
This is an insurance policy which is undertaken to cover loses or perils on the sea. It is the
oldest type of insurance policy and has various types:
1) Voyage policy: This insures vessels or its crew and cargo against risk during movement
of a vessel from one place to another.
2) Time policy: This insures the subject, such as aircraft for a specific period of time. It
covers, is only for the flight period.eg.2hours.
3) Floating policy: It describes the risk in general terms and the insurance contract cover any
risk or loses on the Sea.
4) Valued policy: This policy gives an agreed value to the property insured against loses.
Example: collectively, a vessel may be valued for ₵100,000.
5) Unvalued policy: It does not give any specific value to the losses, but when it occurs, the
compensation will be paid based on the assignment of the risk and upon the limit of sum
assured.
6) Mixed policy: This policy is taken to cover losses for a specified journey for a specified
time.eg. Accra to Tema for 1 day.
7) Composite policy: Where a group of insurers collectively insure against a risk or losses
due to its worth.
Accident:
This is simply an insurance policy undertaken to cover for injuries, damage or loss resulting from
motor accident, especially on our roads. Various categories of accident include:
1. 1.Third party motor insurance: Under this a motorist is insured against Any liability
resulting from death or injury of another or damage to the property of another person. It is
a compulsory minimum coverage by law.
2. Comprehensive: This indemnifies the third party and other possible risk such as injury or
death to a motorist or damage to his vehicle.
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3. Burglary or theft insurance: This covers losses or damage to business premises or
personal property resulting from stealing.
4. Fidelity guarantee: This protects an employer against loss resulting from dishonesty,
fraud or other vices on the part of employees.
5. Employer’s liability: This deals with claims by employees against their employers for
accident occurring during the course of work.
6. Goods in transit or cash in transit: It is undertaken to cater for all goods transported or
cash movement from one place to another which are exposed to a number of risks or
hazards.eg. theft.
7. Bad debt insurance: This is undertaken to cover for all debt that are not likely to be
recovered and would be declared bad and written off.
8. Aviation insurance: It covers all risk associated with the things of an aircraft from one
place to another.
Life Assurance
It covers all the risks associated with human life (mostly death). It may be undertaken for the
people themselves or other people, the policy holder have insurable interest in them. There
are different types of life assurance;
1. Endowment policy: This policy undertakes to pay the insured or his accredited successor
an agreed sum of money on the death of the assured or after he/she has attained a certain
age. Examples, Kofi wadada at age 20 can take a life assurance for a lump of GHs 5million
on attaining age 70 years.
2. Whole life police: Here, the assured pays premium for either his /her whole life or for an
agreed or specified period such as 40 years.
3. Group insurance: Here, an organisation takes out policy for its staff as pension scheme
after retirement.eg. GESSLC-LIFE.
4. Family income assurance: This policy seeks to give regular periodic amount to the family
after the assured has attained a certain age. Example 70 years to support the family.
5. Health assurance policy: It is entered into to help the insured and other members in case
of sickness of hospitalisation.
CHILD EDUCATION:
It serves to as a form of savings to cater for children’s education in future, in case the assured
dies or has attain a certain age. It states clearly the level of education the policy covers.
IMPORTANCE OF INSURANCE
1.
2.
3.
4.
5.
6.
It provides coverage for various damages e.g., accident.
It helps to minimize the financial losses of the insured.
It aids or assists in risk- sharing in case of losses.
It protects the business image.
It provides safety and security to individuals and an organisation.
It can help to generate long- term financial resources.
THE LAW OF TORT
Tort in French stands for “wrong”. It means a civil wrong or wrongful act, whether intentional or
accidental, from which injury occurs to another.
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Macmillan English Dictionary defines tort as an action that harms someone for which one can be
judge legally responsible though not a crime.
In common law jurisdictions, A tort is a “civil wrong that cause someone to suffer loss or harm
resulting in legal liability for the person who commits the tortious act’’.
Tort in simple words may be defined as an act or a wrong doing that causes loss or harm to an
injured party whether intentional or accidental.
Tort law may be contrasted with contract law which also provides a civil remedy after breach of
duty, but whereas the contractual obligation is one chosen by the parties, the obligation in both
Tort and Crime is imposed by the state.
In both contract and tort, successful claimants must show that they have suffered foreseeable loss
or harm as a direct result of the breach of duty.
TERMINOLOGY
1) Tort feasor: it refers to the one or person who commits the tortious act or civil wrong.
2) Injured party: it refers to the victim of the harm or the person who suffers the loss.
3) Legal injuries: it refers to the injuries or loss suffered by the injured party which may be
physical injuries, emotional, economic, reputational injuries, and violation of privacy,
property or constitutional rights.
Tortious act includes all negligence cases as well as intentional wrong doings which results in
harm. Therefore, Tort is one of the major areas of law and results in more civil litigation than
any other category.
Some intentional torts may also be crimes such as battery, assault, wrongful death, fraud,
conversion, trespass on property etc. For example, if one person punches another person in the
nose, it might be an intentional tort called battery which is physical harm. Some torts also
cause damage to property like a broken window and others also harms someone’s reputation
or business
Tort Distinguished From Crime
Tort and crime are both primarily fixed by law, but
1) A tort is a civil wrong or private wrong whereas a crime is a public wrong
2) A tort an infringement or privation of the civil rights which belong to individuals
considered merely as individuals, whiles crime is a public wrong and breach or
violation of the public rights and duties due to the whole community, in its social
aggregate capacity. An offence, which is punishable as a crime, may be treated as a tort
if it is shown that it has caused special injury to an individual, and gives rise to a civil
action, if the aggrieved individual proves that the injury suffered by him is distinct from
that suffered by the general public.
3) In tort, civil actions against the wrong-doer are instituted by the injured party whiles in
crime, the proceedings are instituted by the state against the wrong doer.
Tort Distinguished From Contract
1) The duty giving rise to tortious liability is from the onset fixed by law whereas in
contract the parties voluntarily enter into an agreement to be bound.
2) The duty in tort is towards all persons generally whereas in contract, only parties
are bound.
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3) Breach of duty is only redressible in unliquidated damages whiles in contract an
injured party can go for both liquidated and unliquidated damages depending on the
nature of the contract.
REMEDIES AVAILABLE IN TORT
A victim of a tort may have several possible remedies available under torts law. Apart from
unliquidated damages, there are other legal remedies available in tort; Injunction, action for
specific restitution and self help
INJUNCTION
This is an order of the court to a party to do or refrain from doing an act. Where it is used for the
purpose of protecting some rights in the property, it is directed not only at the party but also his
agents, servants, workmen, successors and assigns.
It will be issued when the conduct of the party is likely to cause such injury to his opponent that
it cannot be adequately compensated in damages.
Similarly, an injunction may be obtained during the pendency of an action in order to maintain
the status quo (substance) until the final pronouncement on the rights of the parties to the
litigation.
A party that fails to comply with an injunction faces criminal or civil penalties including possible
monetary sanctions and even imprisonment. They can also be charged with contempt of court.
There are two basic types of injunctions: interim or interlocutory and perpetual or permanent
injunction
Interim or interlocutory injunction.
It is an injunction given before trial of a case. It is an injunction obtained after the
commencement of a substance action in court, but before the final determination of a suit
or for such a shorter time as stipulation by the court. In Larden v the Attorney General, it
was said that the primary object of the interim injunction is to obviate before a case is
finally determined.
Perpetual or permanent injunction
It is an injunction to a party not to do or refraining from doing an act indefinitely or after
the determination of the case.
ACTION FOR SPECIFIC RESTITUTION
The law of restitution is the law of gains-based recovery. It is the opposite of the law of
compensation, which is the law of loss-based recovery.
The word “restitution” as used in common law denote the return or restoration of a specific thing
or condition. In modern law, restitution means the restoration or return of a specific thing to its
rightful owner and which was obtained through improper means.
Therefore, an aggrieved person in tort can seek an action for specific restitution which can be an
equitable or legal remedy.
SELF HELP
Self-help, in the sense of a legal doctrine, refers to individuals’ implementation of their rights
without resorting to legal writ or consultation of higher authority, as where a financial institution
repossesses a car on which they hold both the title and a defrauded note.
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Individual resort to self-help when they retrieve property found under the unauthorized control of
another person, or simply abate nuisances (as by using sandbags and ditches to protect land from
being flooded).
The legal system places varying degrees of limitation on self-help, and laws vary widely among
different jurisdictions Often, self-help will be allowed as long as no law is broken, and no breach
of the peace occurs (or is likely to occur) In the case of agency, if the independent agent uses self
help and something goes wrong, the principal will be held liable.
In the common sense, “self-help” refers to act of taking the law into your own hands, usually
through violence or other illegal behaviour.
For instance, where a landlord wants to eject a tenant without resorting to seeking a notice from
rent control based on the tenancy agreement, but use his powers and force to eject him and throw
his belongings out.
TRESPASS
It is an area of Tort law or criminal law which means unlawful interference with another person,
property or right.
Trespass can also refer to as the act of knowingly entering another person’s property or right
without permission.
Trespass exists in both Tort law and criminal law. Under Tort law, a property owner may bring a
civil suit against a trespasser in order to recover actual damages or receive compensation relief
for injury suffered as a direct result of trespass.
According to Advance learner’s Dictionary, to trespass means, to go onto someone else land
without their permission. Generally, trespass means to interfere in other person’s affairs, property
or right unlawfully.
CONVERSION DISTINGUISHED FROM TRESPASS
Conversion may be defined as an intentional dealing with goods which is seriously inconsistent
with the possession or right to immediate possession of another person whiles trespass is a
wrongful physical interference of another person’s goods.
Trespass may be just handling the goods whilst conversion may be an act of keeping the goods
and preventing the rightful owner from using his goods as he wishes.
TYPES OF TRESPASS
Basically, there are three types of trespass: trespass to person (False imprisonment, malicious
persecution, Assault, Battery etc), land and chattels.
Trespass to person
It means a direct or an intentional interference with a person’s body or liberty. A trespass which
was also a breach of king’s peace, however, fell within the jurisdiction of the king’s courts, and
in course of time the allegation that the trespass was committed Viet armies (by force and arms)
came to be used as common form in or to preserve the jurisdictional propriety of an action brought
in those courts, whether or not there was any truth in it.
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There are three main forms of trespass to a person; namely False imprisonment, assault and
Battery. All the above constitutes to the direct or intentional interference with a person’s right or
liberty.
a) False Imprisonment
The word “false” means “erroneous” or “wrong”. It is a tort of strict liability and the plaintiff has
not to prove fault on the part of the defendant. To constitute this wrong two things are necessary:
1) the total restraint of the person liberty of a person. The detention of the person may either (a)
actual, that is, physical, e.g., Laying of hands upon a person; or (b) constructive, that is, by mere
show of authority, e.g. By any officer telling anyone that he is wanted and making him
accompany.
2) The detention must be unlawful. The period for which the detention continues is immaterial.
But it must not be lawful.
“Every confinement of the person is an imprisonment whether it is in a common prison, or in a
private house or in the stocks, or even by forcibly detaining one in the public street.
To recover damages for false imprisonment, an individual must be confined to a substantial
degree, with her or his freedom of movement totally restrained.
Example, if Addo enters a room and Adwoa prevents him from leaving through one exit but does
not prevent him from leaving the way he came in, Addo has not been falsely imprisoned. In the
same way, an accidental or inadvertent confinement, such as when someone is mistakenly locked
in a room, also does not constitute false imprisonment; the individual who caused the confinement
must have intended the restraint.
False imprisonment often involves the use of physical force, but such is not required.
False arrest is a type in which the individual being held mistakenly believes that the individual
restraining him or him possesses the legal authority do so.
A law enforcement officer will not be held liable for false arrest where he/she has probable cause
for arrest
Assault
An assault means to act in such a way that, the claimant or victim apprehends the application of
immediate unlawful force upon themselves. It can also be referred to as an action of the defendant
which cause to the plaintiff reasonable apprehension of the infliction of harm on him by the
defendant. Also, an Assault is an attempt or a threat to hurt another, coupled with an apparent
present liability and intention to do the act. Contact with the person is not necessary in Assault
Battery
It is defined as “the intentional and direct application of force to another person”. It has three
elements; force; direct application and intent.
It can also refer to the intentional application of force to another person.
In Nash v Sheen, a hairdresser who put a tone rinse on the claimant (when the claimant had given
permission for a perm) was found liable in battery after it caused a rash.
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Trespass to Land
It is a common law tort or crime that is committed when an individual or the object of an individual
intentionally enters the land of another without a lawful excuse.
It is actionable per se, thus, the party whose land is offered upon may sue even if no actual harm
is done.
In some jurisdictions, this rule may also apply to entry upon public land having restricted access.
(Restricted area of the land for security training or government development purpose). For
instance, if A offload a trip a of sand on the plot of B without any permission, whether B has a
suffer a loss or not, he can sue A for damages.
Also, if A forces B unwillingly onto C’s land, C will not have action in trespass against B, because
B’s action was involuntary.
C may instead claim against A. On the other hand, if B is deceived by A as to the ownership or
boundaries of C’s land A may be jointly liable with B for B’s trespass. For trespass to be
actionable, the tortfeasor must voluntarily go to a specific location, but need not be aware that he
entered the property of a particular person.
Trespass to goods/chattels
It is a wrongful physical interference with another person’s goods.
It is the direct, immediate interference with personal belonging to another person. It can also be
defined as “wrongful physical interference with goods that are in the possession of another,” and
is covered not only by the common law, but also by the Tort Act 1977.
The “trespass” can be as little as touching or moving the goods, given the right circumstances.
The trespass must be direct and not consequential, although in some cases physical contact is not
necessary, for example, to chase cattle is trespass to goods.
In Kirk v Gregory (1876), the plaintiff of was of executor of one who had died in his own house
in a state of delirium tremens (disease of the brain produced by over – absorption of alcohol). The
defendant alarmed by the fact that the servant and others where feasting and drinking in the house,
moved a certain ring from one room to another in the mistaken, but genuine belief that it was
necessary to do so. The defendant was held liable in trespass for the loss of the rings.
NUISANCE
It may be defined as unlawful interference with a person’s use or enjoyment of land, or of some
right owner or in connection with it. It may be also be referred to as excessive or unlawful use of
one’s property to the extent of unreasonable annoyance or inconvenience to a neighbour or to the
public. For example; dust from sawmill polluting the air, company’s waste which pollutes water
bodies, unnecessary harbouring a vicious dog, unnecessary noise from factories etc.
TYPES OF NUISANCES
Nuisance in English law is an area of Tort law broadly divided into two parts; Private Nuisance
and Public Nuisance.
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Private Nuisance:
This is where the actions of the defendant are “causing a substantial and unreasonable interference
with a claimant’s land or his or her use or enjoyment of that land”, Property or right.
It can also be defined as a “Civil wrong” causing unreasonable, unwanted or unlawful use of one’s
property in a manner that substantially interferes with the enjoyment or use of another individual’s
property, without an actual trespass or physical invasion of the land. It threatens our physical
conditions of a land e.g., Blasting of rocks that damage a house, destruction of crops by animals,
vehicles etc. Pollution of soil, a stream. Others that threaten the comfort, convenience and health
of individuals are foul odour, smell from slaughter house, loud noises, dust from sawmill, noxious
gasses into the atmosphere etc. This type of nuisance materially affects the reasonable comfort
and convenience of a neighbour.
Public Nuisance:
This type of nuisance is the one which materially affects the reasonable comfort and convenience
of life of a class of people who are within the neighbourhood of its operation. It can also be defined
as a “Criminal wrong” and it is an act or omission that obstructs, damages, or inconveniences the
rights of the community. It threatens the health, moral, safety, comfort, convenience and welfare
of the community.
For instance, a manufacturer who pollutes a stream has caused nuisance to the community and
can be fined, or pay for the cost of clean-up, storing explosives, practicing medicine without
licence, harbouring a vicious dog, houses of prostitution etc.
In Attorney- General v PYA Quarries Ltd. public nuisance was defined by Romer L J as any
act or omission “which materially affects the reasonable comfort and convenience of life of a class
of her majesty’s subject”.
REMEDIES UNDER NUISANCE
The basic available remedies under nuisance are; Damages (financial compensation), injunction
(an order from court to do or refrain from doing an act) and Abatement (an action which allows
the claimant to directly end the nuisance, such as trimming back a protruding ledge).
If it requires stepping on the defendant’s land, he must give notice or risk becoming a trespasser.
DEFAMATION
1. It is defined as making false, derogatory statement(s) in private or public about a
person’s business practices, character, or financial status, morals or reputation.
2. It can also be defined as the act of making untrue statements about another which
damages his/her reputation.
3. It can also mean anyone who directly communicates to the mind of another a matter
untrue and unlikely to lower the image of a third person in the estimation of rightthinking members of a society is on the face of the guilty of a legal wrong for which
the remedy is an action for defamation.
For an action for defamation to lie, the defamatory matter must have been published. Publication
is when the third party hears of the defamatory matter.
Public figures including officeholders and candidates, have to show that the defamation was made
with malicious intent and was not just fair comment.
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Some statements such as an accusation of having committed a crime, having a feared disease or
being unable to perform one’s occupation are called libel per se or slander per se and can more
easily lead to large money awards in court and even punitive damage recovery by the person
harmed.
Oral defamation is called a slander whereas printed or published defamation is a libel.
TYPES OF DEFAMATION
a) Slander: It is a type of defamation communicated by spoken words or by gestures. The
plaintiff must prove that the defamation was communicated to someone other than him
/her. And, if the statement is not obviously defamatory, it must be shown that it carries a
defamatory meaning (see innuendo) and that reasonable people would think that it refers
to the plaintiff.
In case of unintentional defamation, the defendant may mitigate damages or escape liability
by offering an apology. Defamation that imputes a criminal offense punishable with
imprisonment is usually a sufficient ground for a proof of specifically damages and under
UK Law, defamation damages are assessed by a jury not a judge.
b) Libel: It is a defamatory matter printed or written and it includes anything in more or less
at permanent form such as painting or picture, effigy, caricature, advertisement, taking
film, or any disparaging objects. Libel is actionable per se. It is actionable without any
proof of any special damage.
HOW TO PROOF DEFAMATION
The plaintiff must prove the following four elements:
1. First the plaintiff must prove that the defendant made a false and defamatory
statement concerning the plaintiff.
2. Second, the plaintiff must prove that the defendant made an unprivileged
publication to a third party.
3. Third, the plaintiff must prove that the publisher acted at least negligently in
publishing the communication.
4. Fourth, in some cases, the plaintiff must prove special damages.
Libel is actionable per se. It is actionable without any proof of any physical damage. Slander on
the other hand must in order to the actionable without proof of damage impute:
a)
b)
c)
d)
Criminal offence punishable corporally
Imputing disease
Imputing unchastity to a woman
Slander on a man in his calling or office
DEFAMATION OF A CLASS
Where a defamatory statement is directed to class of person no individual belonging to the class
is entitled to say that the words were written or spoken to him.
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DEFENCES IN DEFAMATION
1) Justification
2) Fair comment
3) Privileges which may be
a) absolute
b) qualified
4) Consent and assumption of risk
5) Innocent disseminators
INNUENDO
In innuendo, the defendant may not comment clearly to utter or write any matter that may be
defamatory, the defamatory matter, is however inferred from the conduct of the defendant.
NEGLIGENCE
1. Negligence as a tort is breach of a legal duty to take care which results in damages on the
plaintiff.
2. Negligence can also define as a failure to take reasonable care to avoid causing injury or
loss to another person.
3. Negligence (negligent) is means failure to exercise appropriate and or ethical ruled care
expected to be exercised amongst special circumstances.
A failure to behave with the level of care that someone of ordinary prudence would have exercised
under the same circumstances.
The behaviour usually consists of actions, but can also consist of omissions where there is some
duty to act.
Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are
the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity
of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
Example, when the administrator of the school negligently fails to validate the salary payment
vouchers of staff, the entire staff may lose their salary for that month, which effect is a breach of
a legal duty by the administrator.
Also, a manufacturer has a legal duty of care to the consumer.
Negligence normally signifies a total or partial inadvertence of the defendant: to his conduct for
its consequences, the consequences are not desired.
Elements Required To Establish “Prima facie” Case Of Negligence
There are basically, four elements required
1. The existence of a legal duty that the defendant owed to the plaintiff.
2. The defendant breach of duty
3. Plaintiff’s sufferance of an injury
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4. Proof that defendant’s breach caused the injury (typically defined through
proximate cause)
Ingredient For Negligence
1. Duty of care: the duty must be recognised by law. The plaintiff must prove a breach of
duty. The duty limits the defendant’s freedom of conduct. There are situations where
manufacturers owe duty of care to the ultimate consumer-the neighbour principle
established in DONOGHUE V STEVESON.
2. Breach of duty: negligence is the omission to do something which a reasonable man
guided upon those consideration which ordinary regulate the conduct of human affairs
would do or doing something which a prudent man would not do.
PROFESSIONAL SKILL AND BREACH OF DUTY
The standard of care of a health professional is that expected of reasonably competent practitioner
of that profession. The actions of the health professional will be compared with the standard.
Negligence is different from mistake or error of judgement.
FOR EXAMPLE, in an emergency situation which requires the services of a specialist, but a
general practitioner available tries his best and could not save the situation, he will NOT be liable,
but when there is a specialist and the general practitioner hold himself of having the special skills,
any harm suffered by the patient make him liable for negligence.
RES IPSA LOQUITOR
In this rule, it is not for the plaintiff to prove negligence sometimes, it is difficult for plaintiff to
know whose act or omission led to this damage.
This is more so where the cause of the damage is peculiarly within the meaning or knowledge of
the defendant who caused it. Where it applies the maxim entitles the plaintiff to rely as evidence
of negligence upon happening of the accident.
Conditions For Application
Most importantly, the occurrence of the accident must tell its own story or raise the inference of
negligence in order to establish a “prima facie” cause against the defendant. But where the thing
is shown to be under the management of defendant or his servant:
It must be shown that:
a) That the thing causing the harm be under the control of defendant or his servants and
b) That the accident must be such as would not in the ordinary cause of things have happened
without negligence
Defences in negligence
a) Violenti non fit Injuria: this are occasions when harm may be inflicted on a person where
that person has no remedy in tort. This is so because he agreed to take risk.eg. Injuries
receive in the cause of a lawful game.
b) Contributory negligence: it simply means that though the defendant has been negligent,
the plaintiff has also been negligent.
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