Key-points in the Law by Nwosu Michael.
Disclaimer: please verify the information contained herein both in terms of veracity and mechanical accuracy.
This note was composed for those who feel it’s too late. Here’s a chance.
STRICT LIABILITY.
Generally, there can be no liability without fault. Strict liability constitutes a qualified exception.
Strict liability is not absolute as such, there are certain defences that can avail the defendant.
Rylands v Fletcher established strict liability for damages which occur from escape of tangible things
from a defendant’s land.
In Rylands v Fletcher, the defendant employed an independent contractor to build a reservoir on his
land. While working, the contractors discovered a series of coal shafts (which unknown to them
linked to the plaintiff’s land) which were loosely covered by debris, they did not block these coal
shafts properly. The reservoir burst and flooded the neighbouring mine run by Fletcher. This
situation/wrong did not fall under any existing tort.
Blackburn J, (speaking on behalf of the judges) held that;
A person, who for his own purpose brings on his land and collects and keeps there anything
likely to do mischief if it escapes, must keep it at his peril if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its escape.
At the Court of Appeal, Lord Cairns added that the thing which escapes must be a non-natural user
of the defendant’s land.
The following elements can be deduced from the foregoing:
1. The defendant must have brought/accumulated (or authorised the bringing/accumulation)
of the deleterious substance on his land-Giles v. Walker1
2. The thing brought upon the land must have escaped.
3. The defendant would be liable for damages caused by the escape.
4. The thing brought must be a non-natural user.
2. The thing brought onto the land must have escaped.
The court in Read v Lyons defined “escape” as escape from a place where the defendant has
control/occupation over to a place outside his occupation/control. In this case, the plaintiff (while
inspecting a weapons factory on behalf of the ministry of defence) was caught in an explosion which
occurred within the factory premises. Her claim under strict liability failed because there was no
escape2.
“Escape” has been treated by the courts in the following cases:
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Where a chair-o-plane from the defendant’s fairground flew and hit the plaintiff in another
land… held escape-Hale v Jennings3.
Where the claimant’s horse stretched over the defendant’s fence and ate leaves from his
yew (poisonous) tree and died… held, no escape-Pointing v Noakes4.
Where the defendant’s yew tree (which killed the plaintiff’s horse) overstretched the
plaintiff’s land… Court held that there was escape-Crowhurst v Amersham Burial Board
The courts have expanded the scope of “escape” beyond land. In Powell v Fall, the court construed
strict liability where sparks emitted by the defendant’s tractor ignited the hays on the plaintiff’s
1
In this case, breeze blew seeds from the defendant’s thistles onto the plaintiff’s land. The seeds damaged the
plaintiff’s crops. The court held that the thistles were occurring naturally on the land and the defendant did
not bring it.
2
She would have succeeded if she brought her claim under occupier’s liability.
3
In this case, damages for personal injuries were recoverable.
4
As in this case, the tree was still within the confines of the defendant’s land.
Key-points in the Law by Nwosu Michael.
farm. Similarly, in the Midwood v Manchester, the court noted that a person who collects a
dangerous thing and has control of it at the time of escape would be liable for damage resulting.
**Escape is not the same thing as diversion In Umudje v. SPDCN Ltd, the defendants diverted a
natural stream away from the plaintiff’s fishery and spilled some oil into his land. The defendants
were held strictly liable for the spillage but not the diversion.
**The plaintiff must have an interest in the land affected. In Hunter v. Canary Wharf, hundreds of
claimants sued canary wharf for constructing the One Canada Square alleging that it obstructed their
T.V signals and led to wastage of their television fee. Their claims failed.
3. Liability for Damage that resulted.
Unlike trespass, strict liability is NOT actionable per se5. In Hale v Jennings6 damages for personal
injury was granted although the court in Read v Lyons posited that the rule in Rylands v Fletcher
should not extend to personal injuries. In NEPA v. Ali, the defendants were liable when their
transformer caught fire and spread to the plaintiff’s factory.
4. The thing brought upon the defendant’s land must be a NON-NATURAL USER.
“Natural” means things that exist by nature for example rocks, river, and so on. Non-natural user
refers to a thing artificially brought or kept on the defendant’s land-NEPA v Ali. Non-natural user is a
special use which brings with it increased danger to others-Lord Mutton in Rickards v Lothian.
With the evolution of the world, the principle of non-natural user can be seen as things which fall
outside the normal daily usage and practice of mankind at a particular time. The following have
been regarded as natural users/use:
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Installation and running of water systems-Rickards v Lothian7.
Working of mines and minerals-Rouse v Gravelworks.
Cooking gas, generators, installation of electric wires, and so on.
Note however that activities which fall outside the normal daily usage may amount to non-natural
use. E.g. Unnecessary accumulation of accepted/normal substances by the defendant. In Musegrove
v Pandelis, the court held that the storage of a tank full of petrol in the garage amounted to nonnatural use.
In determining what amounts to a non-natural use, the courts would consider the benefit of the
activity, quantity of use, likelihood and gravity of damage. Taking note of the place and practice of
mankind.
DEFENCES.
:: Consent/authorization of the claimant/plaintiff.
:: Plaintiff’s fault/contributory negligence of the plaintiff. As was noted in the case itself (Rylands v
Fletcher). Pointing v Noakes (above)
:: Act of nature/God: must be unforeseeable, incomprehensible and must not be self-induced.
Nichols v Marsland, the defendant had diverted a natural stream to create ornamental lakes. There
was a heavy rainfall and storm which caused the water to overflow and cause damage to
neighbouring properties. This defence availed the defendant. However in Corporation of Greenok v.
Caledonian Railway co, on similar facts, the defence was rejected as the court noted that heavy
floods should be expected. Noting that the occurrence must be damnum fatale8
5
The plaintiff must prove/show that he has actually suffered damage/injury.
In this case, a chair-o-plane from the defendant’s property escaped and hit the plaintiff. He was awarded
damages for personal injury.
7
Notwithstanding that in this case, the water flooded a neighbouring apartment.
8
Like a hurricane.
6
Key-points in the Law by Nwosu Michael.
:: Statutory authority: which the court would scrutinise to make sure the defendant’s act falls within
the dictates of the statute.
:: Deliberate Act of an Unauthorised Stranger. In Perry v Kendricks Transport Ltd, the owner of a
vehicle was not liable when mischievous children threw a lighted match into its petrol tank. In Box v
Jubb, the defendant was not liable for the flooding caused by his reservoir because a third party had
emptied their reservoir into his. The defendant is expected to guard against the foreseeable act of a
stranger.
The REMEDY is damages for losses arising from the breach. The test of reasonable foreseeability
shall be applied. In Cambridge Waterworks v. Eastern Counties Leather, over the years, chemical
substance from the defendant’s factory descended into the ground and entered into the plaintiff’s
reservoir. Subsequently, a standard test was carried out and the plaintiff’s water company was
disapproved because of the presence of the chemical in their water. Held that the defendants were
not liable because the damage from the escape was not reasonably foreseeable.
THE RULE IN RYLANDS V FLETCHER DISTINGUISHED FROM NUISANCE.
The rule may be confused with nuisance. Nuisance can be defined as conduct which substantially
interferes with the convenience, comfort and health of the plaintiff (or the public as the case may
be). The following differences exist between both torts.
1. Tangibility: The thing accumulated must be tangible. Unlike in nuisance where an intangible
thing like noise can cause interference.
2. Accumulation: The element of accumulation is present in the rule in Rylands v Fletcher while
there is no requirement of accumulation in nuisance.
3. Escape: unlike under nuisance, the rule in Rylands v Fletcher requires there to have been
escape of a non-natural user of the land.
4. Liability in Rylands v Fletcher is confined to non-natural users this is not however the case in
nuisance.
5. A person who is not the owner of an adjoining land may not sue in Rylands v Fletcher but
under public nuisance, he may sue.
RYLANDS V FLETCHER DISTINGUISHED FROM NEGLIGENCE:
1. The test of foreseeability (under the rule in Rylands v Fletcher) is higher than that in
Negligence. It must be that which could not have been foreseeable nor the occurrence
comprehensible-Nichols v Marsland, Corporation of Greenok v Caledonian Railway
Corporation.
2. Unlike under negligence, strict liability arises between persons with interest in property.
3. Also although both torts require the defendant to take care, such requirement is higher
under the rule in Rylands v Fletcher.
OF WHAT RELEVANCE IS THE RULE IN RYLANDS V FLETCHER?
The rule in Rylands v Fletcher has been disclaimed in some jurisdiction like Australia and Scotland.
Professor Newak in his article “the boundaries of nuisance” regarded the rule as a mere extension of
the tort of nuisance. This position was approved in Transco Corporation v Stockport Metropolitan
Borough Council which was confirmed in A.G v. Corle.
These notwithstanding, the rule in Rylands v Fletcher keeps people and authorities on their toe to
ensure that their activities do not harm others. The rule still applies in Nigeria although the Supreme
Court once noted that it is an aspect of negligence in-SPDCN v Otoko.
In conclusion, Nigeria needs legislative intervention and judicial activism on the appraisal of
the relevance and boundaries of the rule in Rylands v Fletcher to help us clearly decipher our
standpoint.
Key-points in the Law by Nwosu Michael.
LIABILTY FOR ANIMALS.
Closely linked to the innate ability of man to adapt to his environment… is the inherent
desire to modify his environment to suit his preference. This often leads to the introduction of
animals for security, food, companionship, and so on. He keeps such animal(s) at his peril and must
reasonably ensure that they do not harm others.
Animals are living things (other than man) which live on land or water whether domestic, wild or
tamed.
The keeper is one who owns or takes care of or has control of an animal.
Generally, a keeper of an animal is liable for damage caused by his animal.
Animals are zoologically classified into wild and domestic. Ese Malemi in his treatise classifies
animals into Livestock, Dangerous animals and Non-dangerous animals. Kodilinye and Aluko
classified animals according to the form of action i.e. –Cattle trespass and Scienter action9 This is
preferable and shall be suitable for our discussion.
CATTLE TRESPASS: A cattle in this sense includes; cow, bull, goat, and so on… excluding dogs and
cats.
Cattle trespass occurs where the defendant’s cattles are driven onto, or stray into the plaintiff’s land.
Damages can be recovered for injuries/harm caused to the plaintiff and his property.
:: Only a person having an interest in the land trespassed upon can sue.
:: If the keeper is carefully leading a herd of cattle across the road and one happens to stray into
another’s land, there would generally be no liability.
THE SCIENTER ACTION: This is an action against the keeper of a dangerous animal which causes
injury to the plaintiff-May v Burdett.
The scienter action entails charging the keeper for knowingly keeping a dangerous animal. Originally,
it was under negligence but subsequently became strict.
Animals under this head are divided into;
-
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Ferae naturae: (Latin for wild animal) these are animals of a specie which are naturally
dangerous and unless restrained, are likely to cause harm. For example lions, leopards,
tigers, elephants, gorillas, and so on. They are zoologically referred to as\wild animals.
Mansuetae naturae: animals belonging to a naturally harmless specie though individuals
ones may harbour vicious dispositions. For example cats, dogs, and so on.
The following principles are instructive for scienter actions.
:: Whether an animal is ferae or mensauete naturae is a question of law-McQuaker v Goddard.
:: The place of attack is irrelevant.
:: Liability rests on the keeper of the animal: Responsibility shall not rest on a person that merely
tolerates the presence of the animal-Knott v Lagos City Council, where a dog kept by his caretaker
on the school premises attacked and injured the plaintiff cleaner. The caretaker rather than the
school ought to have been sued as the school merely tolerated the presence of the dog within the
premises.
:: Animals Ferae naturae are conclusively presumed to be dangerous without need to prove that
the particular animal was vicious/savage. The owner would be liable. In Behrens v Betram Mills
Circus, the court held the keeper of a tamed circus elephant liable when it knocked down and
injured the plaintiff.
9
A similar classification can be found in the Animals Act 1971 England.
Key-points in the Law by Nwosu Michael.
:: For Animals Mansuetae naturae, the following principles shall apply to determine the keeper’s
liability.
:: The plaintiff must establish that the particular animal (i.e. Mansuetae naturae) has a vicious
tendency/propensity and the keeper knew of the vicious tendency.
-
-
-
The tendency must be shown to be vicious and hostile rather than playful-Fitzgerald v
Cooke.
The harm inflicted on the plaintiff need NOT necessarily have been done in the past. So long
as the animal had exhibited the tendency to do the kind of harm-Barnes v Lucille. In Worth v
Gilling, there was evidence that the dog habitually rushed out of its kernel and attempted to
bite passers-by. In Daryani v Njoku, there was evidence that the defendant’s dog (which
attacked the plaintiff) had previously attacked the housemaid.
The keeper must have been aware of the animal’s vicious tendency. In Cummings v Granger,
the owner was held liable where his dog attacked a coloured skin man. Because he knew
that his dog was prone to attack coloured skin men.
The knowledge of an animal’s vicious propensity must relate to the particular propensity
that caused the damage-Glanville v Sutton10.
Knowledge can be imputed to the keeper where a third party (with some degree of control
over the premises/animal) has knowledge. In Daryani v Njoku, it was held that since the wife
was informed of the animal’s particular vicious tendency, such knowledge can be imputed to
the husband (plaintiff).
DEFENCES:
Fault of the plaintiff: for example it can be shown that the plaintiff was trespassing on the
defendant’s land. In Sycamore v Ley, the plaintiff was held to be at fault where he was teasing the
dog. The keeper must however avoid causing malicious injury to the plaintiff e.g. where he
maliciously keeps the animal like a trap-Sarch v Blackburn.
Contributory negligence: of the plaintiff. The court would apportion blame and reduce damages to
that effect.
Consent of the victim/plaintiff: in Rands v McNeil, the court held that where the plaintiff is a
zookeeper/wild animal trainer, he should expect dangers that come with the job.
Act of an authorised third party:-Flemming v Oor
Act of nature or Novus Actus: for example where the animal got frightened by lightning and the
sound of thunder.
The defences can avail a keeper provided he has taken reasonable steps to prevent the occurrence
of the injurious event.
Remedies: Initially, the people or community resolved to killing the animal as was seen in the case of
Uzoahia v Atu. The court may award damages, grant an injunction or an order of abetment. Seize
and confine the animal in a zoo.
In conclusion, where a plaintiff is unable to show that the ferocious tendency of the animal
was known, he may sue in negligence-Draper v Hodder. There could also be liability for animals in
other torts like nuisance (where one collects animals to disturb his neighbour-Abiola v Ijeoma). One
who accumulates animals in his compound and they escape and cause harm elsewhere may be liable
under Rylands v Fletcher. One who sets his animal to a plaintiff may be liable for assault and battery
and so on.
10
For example if in the Granger’s case above, the animal had attacked a white man this condition would not be
fulfilled because owner knows that the animal had the propensity to attack ONLY black men.
Key-points in the Law by Nwosu Michael.
OCCUPIER’S LIABILITY.
An occupier is a person who has occupation, or some degree of control over a premises. He
may/may not be the owner and he may be present or absent from the premises.
An occupier should take reasonable steps to prevent harm or injury to his visitor.
In Wheat v. Lacon, the claimant and her husband went on vacation and lodged in a house. the
husband fell and broke his neck while coming down the stairs. The claimant brought an action
against the owners and managers of the public house alleging that they failed to keep the stairs well
lit. Lord Denning postulated the following principles:
-
To qualify as an occupier, there need not be exclusive control of a property. Some degree of
control would suffice.
There may be more than one occupier of a premises.
Where a premises is occupied by several tenants, each tenant is generally the occupier of
the portion they occupy.
All managers and tenants are joint occupiers of the common portion of the property.
The owner of the land is responsible for any portion of the property not leased out by him.
Where there is no statute on occupier’s liability, the common-law rule in British Railway Board v
Herrington applies. If there is a statute, the statute applies. Lagos state has enacted her Occupier’s
Liability Law. Law Reform (Tort Law) of Lagos State.
THE COMMON-LAW POSITION.
To determine liability of the occupier, entrants were classified into:
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Independent Contractors: Those who came in pursuance of a contract with the occupier.
Invitees: a person invited by the occupier for their mutual benefit. For example hotel,
supermarket, restaurants, and so on.
Licensees: A person invited by the occupier though not beneficial to him. He may be a
gratuitous licensee or one supported by consideration.
Trespassers: an entrant without lawful justification. Whose presence is not known and if
known, would be objected to.
As was held in Addie v Dumbruck, an occupier owes a duty to invitees and licensees11 and must
ensure their safety within his premises. He must however not maliciously inflict injury on trespassers
sufficient notice and warning must be put for trespassers… e.g. beware of dogs.
In Bird v Holbrook the defendant set up a spring gun to catch trespassers. A child, while pursuing a
chicken trespassed and the gun injured him. The court held the occupier liable for the injury to the
child entrant because in addition to the spring gun being maliciously positioned, there was
INSUFFICIENT notice and warning to avert trespassers.
In British Railway Board v. Herrington the court noted that in addition to taking all reasonable and
necessary steps to avert danger, a higher standard of care and warning is owed to child entrants.
UNDER THE STATUTE.
11
In Ugochukwu v Unipetrol, an explosion occurred while the plaintiff was waiting to buy fuel from the
defendant’s filling station. He sued under occupier’s liability. The Supreme Court observed that a visitor
must prove that he was either a licensee or invitee. His failure to do this was fatal to his case.
However, the facts of this case show that the plaintiff was an invitee.
Key-points in the Law by Nwosu Michael.
The English Occupier’s Act 1957 did not protect trespassers. However other statutes like the
Occupier’s Liability Act 1984 preserves the common duty of care12 and the principle13 formulated in
BRB v Herrington.
Under Section 7(2), Law Reform (Tort Law) of Lagos, Entrants are classified into two viz:
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Visitors.
Trespassers.
A VISITOR: Is a lawful entrant that is (expressly or impliedly) invited or permitted to enter the
premises. Implied permission to enter may be construed in various circumstances like where the
entrant is coming to communicate with the occupier for example parcel delivery.
Statutes provide that the occupier owes a common duty of care to all visitors. Section 8 of the Law
Reform (Tort Law) of Lagos state elucidates on this. The principles identifiable include:
1_ Prudent and reasonable steps must be taken by the occupier to ensure that his premises is safe
and that his visitor is protected.
2_ Dangerous parts of the premises must be fenced off or made out of bounds by warning/display.
3_ The visitor must keep within his bounds else the common duty would be extinguished.
4_ A higher degree of care, prevention and warning is owed to a child trespasser. The occupier must
expect that they are less careful and warning which may be sufficient for an adult may not suffice for
a child entrant.
5_ After knowledge of a child trespasser, the occupier should try to prevent the reoccurrence of
such trespass. Failure to do so would give rise to implied consent. Making the child a visitor.
6_ Where things that attract and entice children (like fruit trees) are on the land, the owner should
take reasonable care to prevent a child from trespassing. He would be liable if danger occurs from
such trespass. (Allurement principle). In Glasgow Corporation v. Taylor, the defendant was held
liable when a child ate some poisonous berries from his tree. Because the fruits were easily
accessible to children and there were no warnings. Williams v Cardiff Corporation.
7_ A professional, coming to exercise his calling should be protected from risk incident to such
calling or profession.
The Common Duty of Care can be extinguished in the following situations:
::: Where the occupier has put sufficient and apparent notice and warning of the danger inherent in
his property. (A higher degree is needed for child trespassers).
::: Where the occupier has showed and warned the visitor the dangerous parts of the house.
::: Where the occupier has forewarned the visitor of the hazardous consequences of operating in a
part of the house. In Roles v Nathan, chimneysweepers disregarded the warning not to sweep the
chimney when lit because of the carbon monoxide it emitted. They died and their widows brought
claims under occupiers liability. Their claims were dismissed.
::: Where the harm caused to the entrant was as a result of the faulty workmanship of an
independent contractor. (an independent contractor is one employed under a contract for services
where the employer can tell him what to do but cannot control the way he does his work).
-
12
13
The occupier must have acted reasonably in entrusting the work to the independent
contractor.
He must have reasonably ascertained the competence of the independent contractor before
entrusting the work to him.
The occupiers should take reasonable steps to avert danger/harm.
That the occupier owes a higher standard of care to child trespassers.
Key-points in the Law by Nwosu Michael.
In O’Connor v. Swan & Edger and Carmichael contractors, a lady was in a shop when part of the
ceiling fell on her and injured her. The court held the independent contractors liable for faulty
workmanship. Also; Billings & sons v. Riden
::: Consent of the plaintiff: volenti non fit injuria.
::: Contributory negligence.
::: Fault of the plaintiff. Roles v. Nathan.
::: Act of nature/God.
::: Exclusion of liability.
NUISANCE
The law seeks to balance the competing claims of individuals to enjoy their land and the right of
others not to be disturbed-Oputa J in Moore v Nnado.
Nuisance has no precise definition. Can ordinarily be likened to annoyance and irritation. “Nuisance”
emanates from the Latin maxim nocentia and nocumentum meaning harm.
In Legal parlance, nuisance is any continuous and unreasonable conduct which substantially
interferes with comfort and enjoyment.
Nuisance is not actionable per se meaning that the plaintiff must prove damage.
There are two kinds of nuisance14;
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Public nuisance
Private nuisance.
PUBLIC NUISANCE.
These are activities which threaten the health, convenience, morality, safety and welfare of a
community rather than an individual or the whole country. For example keeping deceased animals,
obstruction of highway-Section 234 of the Criminal Code15 and so on. Lord Denning in AG v PYA
Quarries stated that a public nuisance is one which is so widespread that we should expect the
community rather than an individual alone to take an action to stop it.
In AG v PYA Quarries, an injunction was granted to stop the defendants from carrying out their
quarrying (mining) activities which was disturbing the neighbourhood.
The Attorney General is the authorised person to sue for a public nuisance so as to prevent a
floodgate of suits with the same claims.
A private person that wants to sue for a public nuisance can either seek the consent of the Attorney
General or show that he has suffered peculiar damage over and above other members of the
community. Plaintiffs have challenged this requirement… citing Section 6(6b), 17(1e) and 46(1) of
the constitution which encourages/ensures accessibility to the courts.
In Amos v Shell-BP the plaintiff’s claim failed where he sued the defendants for disrupting the public
navigable creek by their damming in oil exploration.
Individual plaintiffs have successfully established peculiar damage in: (amongst others)
Rose v Miles, where due to the obstruction of a public creek by the defendant, the plaintiff was
compelled to offload his boat and transport his cargo by land at a greater expense. In Savage v.
Akinriade, where the defendant’s obstruction of a public street interfered with the access of staff,
parents and pupil to the plaintiff’s school.
14
15
In Scotland and some other jurisdictions, such classification of nuisance is not recognized.
A similar provision can be found in Section 192 and 193 of the Penal Code.
Key-points in the Law by Nwosu Michael.
PRIVATE NUISANCE.
A continuous and unreasonable conduct which causes substantial interference with the plaintiff’s
enjoyment and use of his land. Hunter v Canary Wharf.
In De Keysers v Spicers Gross Ltd the court granted an injunction against pile driving even though
the construction was temporary because it continuously interfered with the neighbours sleep.
Unlike public nuisance, only a plaintiff with interest in the land affected can sue for private nuisance.
Nuisance is not actionable per se… the plaintiff must prove that he suffered damage.
FACTORS THE COURTS CONSIDER IN A CLAIM FOR NUISANCE.
::: Substantiality of interference: Not every inconvenience is actionable. Knight-Bruce noted in
Walter v Selfe, that the interference must be relatively substantial. Luxmore J in Vanderpart v
Mayfair Hotel observed that the inconvenience is not based on elegant or dainty modes or habit but
according to plain, sober and simple notions.
In Abiola v Ijioma, the defendant (neighbour) kept poultry located adjacent to the boundary wall of
the plaintiff. The plaintiff complained that the noise and the smell from the chickens interfered with
his comfort. Evidence was also adduced that chicken excreta and remains of dead hens were found
in the pens. Held, (Per Dosumu J) the noise and smell is more than what a reasonable person in the
area is expected to put up with.
In Tebite v Nigeria Marine & Trading Co Ltd the plaintiff, a legal practitioner set up his chambers
near the defendant’s boat construction and repair workshop at Robert Road Warri. He complained
about the noise and smoke emitted from the workshop through their activities. Held: that the
interference was substantial... injunction and damages were awarded.
In Moore v Nnado, the plaintiff alleged excessive noise from the defendant’s bar by playing
stereograms. Plaintiff’s claim succeeded as the court held that the noise was substantial and even
though the neighbourhood was a noisy one, the noise from the bar was additional.
::: Substantiality of Damage. Not merely trifling or minimal. In Ige v Taylor Woodrow Nig Ltd, the
defendants carried on pile driving that caused serious which damaged the plaintiff’s house and it
had to be pulled down. His claim in nuisance succeeded. In Karounwi v Okunaiye, the defendant was
held liable for the damage caused to the plaintiff’s house/wall. In ST. Helen’s Smelting Co v Tipping,
the plaintiff was able to prove that his trees were destroyed by the fumes emitted from the
defendant’s workshop. This constituted substantial damage.
::: Reasonableness of the defendant’s conduct/activity: The court would apply the objective test in
deciding. They would look at the locality and the duration of the harm.
::: The practice of humankind in relation to the community. Sedleigh-Denfield V. O’Calaghan
::: The malice/motive of the defendant. Malice in this context means spite, ill-will, evil motive.
Malice can aggravate the damages (i.e. the defendant can be made to pay more) Hollywood Silver
Fox Farms v Emmett, malice was construed where the defendant fired a gun on his property to
make the sensitive silver foxes in the defendant’s land to miscarry. Christy v Davey.
::: The Utility of the defendant’s Act or operation. This is not conclusive because in Bellew v
Cement Co ltd, the court ordered the closedown of the defendant cement factory for it constituted
a nuisance. It disregarded the fact that cement was vital for public interest and that they were the
only producers of cement in the locality.
::: Extra-sensitivity of the plaintiff or his property. The question is; would a reasonable neighbour
have endured the interference? Because no right is accorded to dainty modes as has been seen in
the cases of AG v Vanderpart and Walter v Selfe. However, once it can be established that the
plaintiff’s action was predicated on malice, the plaintiff can succeed as was seen in Hollywood
Silverfox farm v Emmet. Where nuisance was found despite the fact that the plaintiff’s silverfoxes
were over sensitive.
Key-points in the Law by Nwosu Michael.
::: Duration of the harm or inconvenience. The essence of nuisance is the continuing state of affairsPage Motors V Epsol and Pewel Borough Council. The harm must be continuous.
::: The Locality and whether the right to commit the nuisance existed from time immemorial:
Nuisance differs from locality. The court noted in St. Helen’s Smelting Co v Tipping that a person
who chooses to live in the heart of an industrial town should not expect a high degree of peace and
quiet. Also in Tebite’s case the court held that what may be nuisance in Ikoyi may not be nuisance in
Ebute meta.
::: Ability of the defendant to avoid the nuisance. May v Stoop
::: Practicability of the relief sought for example the court cannot order an injunction where it
would be made in vain. E.g. where it would require constant supervision of the court.
Note that only a person with interest in land can sue for private nuisance-Read v Lyons. Where a
land has been let to a tenant, the landlord cannot sue except the nuisance caused a permanent
damage to the property. A visitor cannot sue-Maloney v Laskey.
The person that created or authorised the nuisance or the occupier of the land where the nuisance
emanates can be sued.
REMEDIES FOR NUISANCE:
1. Abetment: Stopping the nuisance by yourself. This means of self-help may amount to a tort
of trespass as such be careful and should not be malicious or mischievous. Unauthorised
entry into land is prohibited unless in exceptional situations.
2. Injunction.
3. Damages.
DEFENCES:
-
-
Act of an unauthorised stranger.
Reasonableness of conduct.
Novus actus: an intervening act.
Necessity: in order to avoid some imminent peril, the defendant takes an act which causes
damage to the plaintiff.
Statutory authority: Authority granted by statute to embark on an activity. Acts must be
within the protection of the statute In LCC v Olutimehin,upon suit for nuisance from smell by
disposing sewage, the defendants alleged that they had authority from the Lagos Local
Government Act 1959 to remove and dispose night-soil and sewage. The Supreme Court
held that the statute only authorised the defendants to remove night soil rather than
disposal of sewage or by means of sewers. It was added that it is no defence that the
defendant exercised all care and skill.
Triviality or reasonableness of conduct.
Use from time immemorial/custom in the area. For example industrial area. It is no defence
that the plaintiff came to the nuisance- Bliss v Hall.
Public health
Contributory negligence
MALICIOUS PROSECUTION.
The Law seeks to encourage citizen participation in the volunteering of information and the
apprehension of criminals but it frowns at unreasonable and unjustified instigation of criminal
proceedings against a person. Especially where it ends in his favour.
Malicious prosecution occurs where the defendant maliciously sets the criminal law in motion
against the plaintiff and prosecution terminated in his favour. Resulting in damage to the plaintiff’s
reputation, person or property.
Key-points in the Law by Nwosu Michael.
The elements of malicious prosecution were rightly stated by the court in Balogun v Amubikanhu;
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The defendant instituted a prosecution against the plaintiff.
The prosecution ended in favour of the plaintiff.
The defendant had no reasonable and probable cause for prosecution.
The defendant acted with malice.
The plaintiff suffered damage. May be to his person, property or reputation.
That the defendant instituted prosecution against the plaintiff: The court in Mandilas & karaberis
ltd v Apena said this means that the defendant must have been actively instrumental in setting the
law in motion against the plaintiff. This can occur by the volunteering of incorrect information to law
enforcement officers.
Mere volunteering of information and leaving at the discretion of the police would not suffice.
In Inneh v Aruegbon, the husband lied to the police that his wife had stolen. This was in a bid to
make her return from Benin where she travelled to. She was arrested and brought back. Following
the decision in Tewari v Singh the court stated that where the defendant knows of the falsity of his
statement, he can be seen as the prosecutor.
In Yeboah v Boateng, the defendants were forced to pay pacification fees (as was customary) to the
plaintiff (a ruler) for paying dues to his counterpart without his permission. They went to report
extortion to the police who refused to prosecute. They went further to the magistrate court. While
the prosecution was ongoing, the AG entered a nolle prosequi which resulted in the discharge of the
plaintiff. The plaintiff succeeded in his claim for malicious prosecution. Because their persistence
showed that they wanted to set the law in motion. The fact that the defendant had prosecuted on
the advice of a solicitor did not extinguish the liability.
Termination in favour of the plaintiff: There must have been a previous suit which terminated in
favour of the plaintiff before a suit for malicious prosecution can be instituted. It may be by
discharge and acquittal. May be on technical or substantive grounds. It may be by a nolle prosequi as
was seen in the case of Yeboah v Boateng, All that is required is that a conviction was not secured.
Tewary v. Singh, Payin v Aliuah, Inneh v Aruegbon, Turner v Ambler.
No reasonable and probable cause for prosecution: Reasonable and probable cause. was defined in
Hicks v Faulkner as honest belief in the guilt of the accused. It is both objective and subjective.
Objective in asking; Whether a reasonable man with full knowledge of facts would have believed
that the plaintiff is guilty of the crime imputed. It is subjective in asking; whether the defendant
honestly believed that the plaintiff was guilty.
If he acts honestly on fiction, he cannot be blamed on that.
Where the defendant later finds out facts which make his allegation groundless, he must update the
officers/court.
It is for the plaintiff to establish absence of reasonable and probable cause not the defendant.
The defendant’s belief must be based on facts known to him at the time of instituting the
prosecution.
The defendant must have acted maliciously: Meaning that the defendant initiated proceedings
from an improper motive which is not in furtherance of justice. Balogun v Amubikahun. The
defendant had no honest belief in the guilt of the accused. In Turner v Ambler malice was construed
where the landlord instituted proceedings against the tenant in order to procure their eviction from
the premises. No matter how malicious a defendant’s act was, if he had reasonable and probable
cause that the plaintiff is guilty, he cannot be liable. In Usifo v Uke; where two villages were fighting
on the right to appoint an ovie. They reported one another to the security. Because they honestly
believed that they had the right to appoint ovie.
Key-points in the Law by Nwosu Michael.
The plaintiff suffered Damage: Generally, the plaintiff is presumed to have suffered an injury or
damage though, sometimes he may be required to prove. He can do this by proving injury to his
person, property or reputation. In Yeboah v Boateng the court construed damage to the plaintiff’s
reputation because of the proceeding instigated alleging that he extorted the plaintiff. Wiffen v
Bailey, Damage can also be construed where the prosecution caused the plaintiff to be imprisoned
or punished.
Defences:
VICARIOUS LIABILITY.
This is not a tort but a rule of responsibility which makes X liable for the tort of Y because of
their relationship and also for fairness, economic and policy reasons. The relationship is usually that
of master and servant.
JUSTIFICATION FOR VICARIOUS LIABILITY.
The maxim, qui facit per alium facit per se; he who acts through another acts for himself.
Respondeat superior, let he master answer. Atiyah in his work
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The employer set the action in motion.
The employees do it in pursuit for their employer’s profit.
Glanville Williams noted that; vicarious liability looks for a solvent defendant which is the
employer. They may not feel the effect because they take out insurance policies.
The loss can be spread to customers by increasing the cost of goods. There has been
arguments for non-profit organisations that they should be excluded because they would
not be able to internalise their costs.
It is one of public policy as was noted in Majrowski.
For an employer to be held vicariously liable for the tort of his servant,
1. The servant (employee) must have committed a tort.
2. There must be a master-servant relationship.
3. The tort must have been committed in the course of employment.
A TORT BY THE EMPLOYEE: The plaintiff must prove that the employee’s act satisfies all the
elements of the particular tort alleged. For example Mr A cannot sue Employer B alleging that
employee C defamed him when there was no publication of the defaming article.
In Cassidy v Minister of Health, the plaintiff need not pinpoint the particular servant(s) once it has
been established that the servant committed the tort.
THERE MUST BE A MASTER-SERVANT RELATIONSHIP: Lord Denning noted, that it is easier to
identify a master-servant relationship than to describe.
Various tests have been suggested to construe a master servant relationship.
The court would look at the terms of the contract of employment and lift the veil where necessaryFerguson v Dawson. Precedents can also be of help.
The control test: Looking at the degree of control. Where the employer can determine what is done
and how it is to be done, a master-servant relationship would be construed. As salmond observed;
an independent contractor is his own master. In Collins v Hertfordshire, a consultant surgeon was
seen as an independent contractor.
With the evolution of mankind and specialisation, the control test runs into hitches in its application
to professionals like pilots, doctors, lecturers…
Key-points in the Law by Nwosu Michael.
The organisational Test (Business integration): Lord Denning in Stevenson, Jordan and Harrison Ltd
v McDonnell & Evans ltd stated that where the work of the servant is integrated into the
organisation, he can be seen as an employee. Thus, professionals like doctors who are integrated
into an organisation are servants notwithstanding that they cannot be told how to do their work.
The multiple test: This is the modern test. In Market Investigations V Minister of Social Security,
Cooke J noted that the control test is not exhaustive. In Ready Mixed Concrete v Minister of
Pensions and National Insurance, it was suggested that in addition to the terms of the contract,
control test and organisational test, we should ask; who provides the materials, hires, remunerates
and has power of dismissal?
Lending a servant.
Where A lends his servant C to B and a tort is committed by C who should be liable?
In Viasystems v Thermal transfer, Lord Rix submitted that either the general employer is liable or the
hiring employer or both of them should be jointly liable. in this case, both employers were held
jointly liable. However, in Blackwater v Plint… and the case of; Various claimants v the Catholic Child
Welfare Society; institute of the brothers of Christian schools, joint vicarious liability was rejected.
In Mersey Docks & Habour V. Coggins & Griffiths, the board hired their employee and crane to the
firm but retained the power of dismissal and remuneration. While loading a ship, the hired servant
injured a person. The general employer was held liable because they retained the power of dismissal
and paid wages. This case was approved and followed in Rotimi v Adegunle, the court held the
general employer liable where he lent his servant and lorry and there was a collision en route.
In Hawley v. Luminar leisure ltd, the hiring employer of a night club was held liable because it was
only labour that was hired.
THE TORT MUST HAVE BEEN COMMITTED IN THE COURSE OF EMPLOYMENT.
Salmond, on tort posits that a wrong is committed within the course of employment if;
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It is expressly authorised by the employer: meaning that what the employer instructed the
employee to do amounts to a tort.
It is an unauthorised way of doing what the employee was authorised to do.
That which is incidental to the employee’s employment.
An unauthorised way of doing an authorised act.
Where an act is authorised but executed unlawfully, the employer would nevertheless be liable. In
Century Insurance Co v Northern Ireland Road Transport Board, the employer was vicariously liable
where his driver struck a match while transferring petrol from the tanker to a reservoir and an
explosion ensued. In Popoola v Pan African Gas Distributors Ltd a similar conclusion was reached on
similar facts.
Where it is a prohibition limiting conduct, the employer would still be vicariously liable.
In Limpus v London General Omnibus Company, vicarious liability was construed where the
employee, contrary to express prohibition raced and had an accident with the employer’s bus.
In Canadian Pacific Railway Company v Lockhart, contrary to company policy, the employee drove an
uninsured car and injured the plaintiff. Held, vicariously liable.
In Rose v Plenty, vicarious liability where the milkman, contrary to express instructions engaged the
plaintiff a minor.
It all seems to show that the court would hold the employer liable because the tort was committed
by the servant in the furtherance of the employer’s interest.
The employer can be exculpated where the prohibition limits the scope of employment.
Key-points in the Law by Nwosu Michael.
In Beard v London General omnibus company, a conductor drove a bus and injured the plaintiff was
held to be acting outside his scope. Thus personally liable.
Jarmakani Transport ltd v Abeke; A servant of the defendant had disobeyed instructions and taken a
passenger aboard the lorry. On the lorry, was the inscription; “passengers not allowed” the Supreme
Court held that the prohibition curtailed the scope of employment and the employee was acting
outside the scope of his employment.
Twine v Beans Express. The court posited that it was outside the driver’s scope of employment to
pick up passengers. Same position was reached in Jarmakani Transport ltd v Abeke on similar facts.
THAT WHICH IS INCIDENTAL TO HIS EMPLOYMENT.
In Smith v Stages, employees were sent to another jurisdiction to work. They worked non-stop and
decided to return, on the way to back, there was a crash and they were severely injured. The court
held that the men were still acting in the course of their employment.
In Poland v John Parr and sons Ltd, vicarious liability was imposed where employee assaulted a boy
he thought was stealing from his employer’s goods.
In Staton v NCB, the court held that cycling across the employer’s premises after work to collect
wage was incidental to the employment.
In detour situations, We look at the degree and purpose of the detour. To determine whether the
employee was on a frolic of his own.
In Whatman v Pearson, employee was still within his course of employment where he drove his
employer’s horse home to eat contrary to instructions. Because the detour was incidental to his
employment. However, in Storey v Ashton, the court held that an employee who after business
hours had driven to a friend’s house was not within the course of his employment, and the trip had
nothing to do with his employment.
In Williams v Hemphill, the children of the employer asked the driver to detour and the court held
that it was within the course of his employment.
LIABILITY FOR CRIMINAL ACTIONS OF THE EMPLOYEE.
A tort of a servant can also amount to a crime. For example assault, battery, defamation, conversion,
and so on.
Lord Steyn in Lister v Hesley Hall, noted that an application of the Salmond test would fail in such
situations of intentional wrongdoings of employees.
Take for instance, a cashier of a bank defrauds a customer, should the bank be liable? the cashier
was not employed/authorised to steal customers’ money nor is stealing an unauthorised way of
doing what he was employed to do.
Some courts have posited that it is wrong to hold to hold an employer liable for such acts. In
Trotman v North Yorkshire County Council, where the caretaker was sexually misconducting himself
with the children. Held, sexual misconduct is the direct opposite of what the employee was
employed to do. In New South Wales v Lepore, sexual assault by a teacher was not within the course
of employment.
However, the case of Lister V Hesley Hall ltd, (overruling the Trotman case), the court applied the
“close connection test” which postulates that if the intentional tort of the employee was closely
connected with what he was employed to do, it would be fair and just to find the employer
vicariously liable.
In this case, the warden of a home for emotionally and psychologically unstable children (Axeholme
House) was found to have systematically sexually abused the children under his care (paedophilia).
The employers were held liable on the basis that there was a close connection between what the
Key-points in the Law by Nwosu Michael.
employee was employed to do and the act of abuse committed. The employment significantly
contributed to the occurrence of the harm. Lord Millet distinguished mere opportunity from special
position of trust in this case. The former being a mere advantage which may not ground vicarious
liability.
In Bazley v Curry, the employee was in charge of bathing and tucking the boys in the facility ran by
his employer for emotionally unstable boys. He sexually abused one of the boys. Held, vicariously
liable for the risk of molestation was materially increased.
In Dubai Aluminium Co Ltd V Salaam, the employee of a firm of solicitors had fraudulently drafted
certain documents which defrauded Dubai Aluminium Co of $45 million, the employers were held
vicariously liable. In Ming An Insurance v Ritz-Carlton Ltd, the court applied the close connection test
to a situation where the doorman injured the plaintiffs while driving his employer’s limousine to get
food for his friends. The court submitted that the close connection test should be used for situations
of detour and where the employee is acting outside the scope of his employment.
In Ffrench v Sestili (2006), vicarious liability was construed by the relationship of trust, dependence
and vulnerability. Where the caretaker (provided by the defendant Agency) fraudulently obtained
the (disabled) plaintiff’s pin and stole money via an ATM from the plaintiff’s account.
In Mattis v Pollock the court found the employers (Flamingos Nightclub) vicariously liable when their
bouncer had stabbed the plaintiff outside the club. Since the employee was encouraged to maintain
security through violence in the furtherance of the employer’s business. Despite the fact that the
bouncer was overzealous in carrying out the master’s instruction and there was an element of
malice and revenge.In Mattis v Pollock held employer vicariously liable where the bouncer stabbed
the plaintiff. Because he was encouraged to maintain security through violence and did so in
furtherance of the employer’s business.
In Majrowski v. Guy’s and St. Thomas NHS Trust, the employers were held vicariously liable for
harassment done by their employee in contravention of Section 1 and 3 of the Protection From
Harassment Act where an employee was harassing the plaintiff.
In Poland v John Parr and sons Ltd, the court held that the employer was liable for the assault of the
employee on the plaintiff whom he thought was stealing the goods of his employer. In Bernard v AG
Jamaica, the claimant went to a public phone booth with the intention to use a phone. A police
officer requested for the phone on the authority of being a police officer. The claimant refused and
an altercation ensued. The police pulled out his service revolver and shot the claimant. The court
held the crown liable only on the ground that the employee at all times purported to act as a police
officer and on policy basis too.
In Lloyd V Grace Smith and Co, the firm of solicitors was found vicariously liable for the fraud
perpetrated by the managing clerk on the client. Immaterial that it was perpetrated for his own
selfish interest.
In Nigeria, vicarious liability for criminal actions of employee have been construed on the basis of
estoppel ostensible authority.
In UAC ltd v Saka Owoade, the principle of Lloyds case was applied. Vicarious liability was construed
where the employees held out to be driver and errand boy absconded with customer’s goods. Same
conclusion reached in Dola v John, where the employee held out to be the employer’s journeyman
absconded with the plaintiff’s jewelleries and gold ornaments.
The courts have often distinguished between close connection and mere opportunity.
In Jacobi v Griffiths, the employee took advantage of his position as trip guide to sexually abuse two
youths during a camping trip. The court held that this was a mere opportunity. The dissenting view
saw that a relationship of trust was created where the employee was put in a relationship of trust
with the vulnerable campers.
Key-points in the Law by Nwosu Michael.
This decision has also been criticised for failing to fulfil the policy objectives which vicarious liability
seeks.
Note however that acts of passion, vengeance and malevolence may excuse the employer from
being held vicariously liable for the act of his employee.
In Irvin V Post Office, the court held that the employers were not liable where their postman wrote
racially offensive messages on the back of an envelope addressed to the plaintiff.
In Deatons v Flew, the court held that the barmaid was personally liable where she assaulted a
customer who did not provoke her.
In AG British Virgin Island v Hartwell, a policeman had abandoned his duty post to a bar. Shot his
partner and her companion with his police revolver out of jealous rage. The employers were not
liable for the act, but they were liable for negligently entrusting a dangerous weapon to an
unreliable person.
It is all a question of policy.
From the above discussion it is clear that the close connection test is a policy driven
formulation and would be applied based on the facts and merits of each case. A form of no-fault
accident compensation. The employers are thus made to exercise due care in their employment and
selection process. There has been little or no judicial activism in this area in Nigeria. This is
suggested.
LIABILITY FOR ACTS OF INDEPENDENT CONTRACTOR.
An independent contractor is a person employed under a contract for services. Meaning that the
employer can tell him what to do but cannot control how he does the work. Generally, an employer
is liable for the acts of the servant, but not that of the independent contractor.
A servant is a person employed under a contract of service where the master can control what is to
be done and how it can be done. An independent contractor uses his discretion.
However, direct liability rather than vicarious liability can arise where the employer has given the
independent contractor a non-delegable duty. A non-delegable duty is that which is so important
that it cannot be escaped notwithstanding delegation. E.g negligence. In Cassidy v Minister of Health
and the case of Roe v Minister of Health (unlike the earlier position of Hillyer v Governord of St.
Bartholomew Hospital)the court held that this duty is NOT restricted to administrative and
ministerial functions. The following duties are non-delegable.
1. Where the employer has expressly authorised the independent contractor to commit a tort.
For example if a passenger of a taxi orders the driver to speed and a collision ensues. Or if x
employs y to build a wall on the road, he can be liable in public nuisance. Or where a master
employs an independent contractor to beat up another to show him a lesson.
2. The duty to take care (Negligence): the employer can be liable. Except it is not connected to
the job. Padbury v Holiday and Greenwood ltd where negligently placing an instrument on a
window sill was not connected to the work he was employed to doThe employers were held
liable in the following cases;. Cassidy v Minister of Health. Barnett v Chelsea and Kensington
HMC. Latimer v AEC ltd.
In the Alcock v Wraith, Neill LJ listed some other categories were identified they include;
3. Absolute duties imposed by statute.
4. Strict liability duties arising under the rule in Rylands v Fletcher.
5. The duty of an employer regarding safety of an employee.
It is suggested that statutes should be drafted in Nigeria to clarify the scope of liability for acts of
independent contractors.
Key-points in the Law by Nwosu Michael.
DEFAMATION.
Freedom of expression and speech is one of the most cherished and guaranteed rights of man as a
political being in a democratic society. However, the law strikes a balance between the freedom to
express oneself and a duty not to harm another person’s reputation. The allegation that a lecturer
had committed adultery with a female student was seen as defamatory in Nthenda v Alade.
Professor Winfield in his treatise (Law of Tort 18th Edition) stated that defamation is the publication
of a statement which tends to lower a person in the estimation of right thinking members of the
society, or which tends to make people shun or avoid him. He noted that a right thinking member is
not unusually naïve or suspicious.
The defence of justification, vulgar abuse, qualified and fair privilege, and so on can avail the
defendant.
The court in Newbreed v Erhomosele, noted that there is no need to prove malice because the law
looks at the effect of the statement rather than the subjective motive of the defendant.
To succeed in a claim for defamation, the Plaintiff must establish that:
1.
2.
3.
1.
The defendant made a defamatory statement.
The statement referred to the plaintiff.
The statement was published. (To at least one person other than the plaintiff).
A defamatory statement made:
In Okolie v Marinho, defamation was defined as a statement calculated to lower the person in the
estimation of right thinking members of the society. The court noted that the test is objective. It can
also be a statement which discredits the plaintiff in his trade or profession- Labati v Badmus.
In Registered Trustees of AMORC v Awoniyi, the court held that the statement must damage the
plaintiff in the eye for right thinking members of the society not just a section.
In Byrne v Dean, the defendant put a notice for the member of a golf club stating that the plaintiff (a
member of the club) had reported the club for possession of illegal gambling equipment. Upon a suit
for defamation, the court held that only members of the golf club would shun him. Right thinking
members of the public would praise the plaintiff. As such there was no defamation.In Byrne v Dean,
the court held that the plaintiff’s reputation was only reduced in the estimation of members of the
club for his disloyalty to the club in reporting their possession of illegal gambling facilities.
Defamation is classified into libel and slander. The rationale being that unlike Libel, slander is not
actionable per se (the plaintiff must prove damage) this was fatal to the plaintiff’s claim in
Onojioghofia v Okitipai.
Libel is defamation in a permanent form (for example publication in writing) while slander is
defamation in a transient form (for example gestures or speech).
From the interpretation of Section 1, Slander of Women Act, the Defamation Act, Section 2 and 4,
Defamation Law of Lagos Slander can be actionable per se in the following cases which show prima
facie damage; where there is imputation of:
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Crime:Punishable with imprisonment in the first instance. In Agoaka v Ejiofor, the defendant
falsely accused the plaintiff of stealing his cocoyam. Held, following Ractcliffe v Evans that
the plaintiff was entitled to recover damages from the slander.
Contagious and venereal diseases: because this would tend to make others shun and avoid
the plaintiff. In Murray v Williams, it was held that tuberculosis is not venereal.
Unchastity /adultery: Section 1, Slander of Women Act and Section 4, Defamation Law of
Lagos State Have made such imputation actionable per se.In Farashi v Yakubu, allegation
that the plaintiff committed adultery made the slander actionable per se.
Key-points in the Law by Nwosu Michael.
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Unfitness for professional/business calling which injures the plaintiff in his office or
profession. In Jones v Jones, allegation of adultery was immaterial to the school master’s
profession or calling.
Where the above is uttered in the heat of anger (vulgar abuse) which the audience understood, it is
not actionable per se. In Bakare v Ishola, Held, calling the plaintiff an ex-convict and a thief was
uttered in the heat of anger. However, in Ibeanu v Uba, the words; Josiah, Josiah, you have brought
the thieves with whom you stole my goat. Held to be actionable slander. Vulgar abuse would not
apply to libel because the defendant would have had an opportunity to rethink. In Benson v West
African Pilot, defence of vulgar abuse must fail for calling the plaintiff a simpleton in a publication.
A statement on literal interpretation may not sound defamatory- this is referred to as an
INNUENDO. In Eyo v Eastern Nigeria Information Service. The court dealt with the nature of an
innuendo. An innuendo may be;
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True/legal: The plaintiff should prove that an audience with special knowledge of facts
would be able to read a defamatory meaning into the statement.
False/popular: The plaintiff must show that an ordinary member (not necessarily with
special knowledge) of the community would construe a defamatory meaning into the
statement.
The plaintiff must show that an ordinary member of the society would know that the statement
refers to the plaintiff. In the Eyo case, the defendant stated that Mr E withdrew money from ACB
which went insolvent. The court held that an ordinary member of the society would not relate the
statement to the plaintiff.
In Johnson v Daily Times, the defendants stated; “who got the stadium contract?” Modupe Johnson
and Co ltd. The CEO of this ltd happened to be a former minister in charge of the stadium. The court
held that the plaintiff must establish that persons knowing of the words would take it in a
defamatory sense.
In Akintola v Anyiam, “son of Chief Sawe of Ilesha and Alice” was an innuendo referring to the
plaintiff who was a native of Ogbomosho. This would make people think that he had been lying of
his origin.
2. That the defamatory words referred to the plaintiff
Not necessarily the defendant’s name but a reasonable man should know that the words referred to
the plaintiff.
In Service Press v Azikiwe, the court held that “Ben Azikiwe” did not refer to the plaintiff Nnamdi
Azikiwe.
In Bakare v Oluwide, it was held that a cartoon displaying the exploitation of dock workers referred
to the plaintiff because it resembled him and he was a general stevedoring contractor and a
traditional ruler.
In Ukpoma v Daily times of Nigeria Ltd, the court held that the statement “a retired assistant director
of works in Lagos had been arrested for corruption” referred to the plaintiff who is a retired
assistant director of works.
Unintentional defamation: where the defendant alleges that in all honesty, he did not intend to
defame the plaintiff. Nor was he careless in ensuring that the statement was not defamatory.
At common-law, this was no defence. In Hulton v Jones, damages was awarded to the plaintiff
whose name “Artemus Jones” was used in a fiction without intention to defame him. In Newstead v
London Express Newspaper, the defendants published an accurate report of the bigamy trial of
Harold Newstead of Camberwell. The plaintiff with the same name succeeded in a suit for
defamation.
Key-points in the Law by Nwosu Michael.
This hardship has been remedied by Statute under Section 4 of the Defamation Act 1952 and Section
6 defamation Law of Lagos 1961 the defence can avail the defendat however, he must make an
apology through an offer of amends which simply seeks to make corrections to the publication and
notify people that have copies of the error.
The plaintiff may accept or reject this offer but where he refuses it, it may stand against him in
evidence which could mitigate damages-Section 6(3) Defamation law of Lagos.
3. WORDS MUST HAVE BEEN PUBLISHED:
The law of defamation does not protect a person from personal feeling towards himself. The
dictionary defines publication as making available to the public. However, in the law of defamation,
it means communication to a person other than the plaintiff. In Okotcha v Olumese, the plaintiff
showed the defamatory certificate and not the defendant.
There is no publication where the person addressee does not understand or where an unforeseen
third party eavesdrops or interferes with the communication. In Huth v Huth no publication where
the claimant’s butler secretly opened the confidential letter. However, In Theaker v Richardson,
there was publication where the husband opened a defamatory letter addressed to his wife because
it was foreseeable.
There could be publication where a clerk opens a letter addressed to his/boss. Except the letter is
marked; “private” or “personal” Pullman v Walterhill.
Every repetition of a defamatory statement is a fresh publication-Awoniyi v AMORC. Thus the editor,
publisher, printer, and so on can be liable for defamation. No defence to say he is just repeatingOkotieboh v Amalgamated Press Ltd
There is privileged communication between spouses as such there is no publication except a third
party is introduced to the dissemination.
Innocent dissemination: Where the defendant involved in the dissemination of a defamatory article
pleads that he did not know that the material contained libellous matter. The defendant must show
that:
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He is not the author, printer or publisher of the defamatory article. In practice, it is usually
bookstores, libraries and so on.
At the time of disseminating the material, did not know (in all honesty) that it contains a
libellous matter.
His ignorance of the libellous matter in the material must not be as a result of his negligence
or carelessness.
It is a question of fact. In Awolowo v Kingsway Stores Ltd, the defendants sold copies of a book
titled, “the one-eyed man is king” which contained libellous matter referring to the plaintiff. The
defendants pleaded innocent dissemination. Their claim failed as the court held that the defendant
had been negligent because the title of the book was an intriguing one. Awoniyi v AMORC.
Generally, there is no defamation of a class of people because a person is not pin-pointed. Except
the class of people are so. In Dalumo v Sketch Publishing, the court held that alleging that top
officials of the Nigerian Airways were corrupt referred to the plaintiff who came within it.
DEFENCES.
Unintentional defamation. (discussed above)
Innocent dissemination. (discussed above)
Justification: A complete defence where the defendant substantiates the truth of the alleged
statement. As a plaintiff is not entitled to damages for a character he is not entitled to bear.
Key-points in the Law by Nwosu Michael.
At common-law, the truth of every single defamatory statement must be proved. However, under
Section 5, Defamation Act and Section 7, Defamation Law of Lagos it would suffice if the truth
established in relation to one statement can substantially extinguish the defamatory effect of the
other statements.
The truth need not correspond 100 percent with the defamatory statement. In Alexander v North
Eastern Railway Co, 3 years imprisonment was alleged while the plaintiff was actually sentenced to 2
years. The plea of justification still succeeded.
In Onwuchekwa v Onovo, the defendant stated that the plaintiff was a lunatic. A senior consultant at
the Yaba Psychiatric Hospital was able to adduce evidence that the plaintiff was suffering from
Delirium Tremens. Held, no defamation.
However failure to prove the defence would obviously aggravate damages.
Fair/honest comment: journalists, commentators, media houses political and social enthusiasts and
in fact, citizens need to be given space to air their views in relation to matters which affect the
public. The crux of this defence is that;
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The matter commented upon must be of public interest or that which challenge public
attention.
The defendant must have expressed his opinion on the facts which he honestly thought
were true. In essence, the defendant must not have invented the facts he commented upon.
In African Press Ltd v Ikejiani, asserting that the plaintiff is fraudulent and has a fake degree
was fatal to the plea.
Comment must be fair and honest and not an assertion of fact. In Nthenda v Alade, accusing
a lecturer of immoral association and adultery with a female student was held to be an
assertion.
The comment must not be actuated by malice. In Bakare v Ibrahim, the court noted that the
defendant should not use the occasion for some indirect purpose. In African Newspaper Ltd
v Coker, malice was construed where the defendant persistently insisted that the
government official be investigated for corruption.
Absolute privilege: Public policy demands that for smooth operation of the state, some people
should be immune form proceedings in respect of statements made in their judicial or legislative
capacity. This defence is a complete defence however false or defamatory the statement may be.
Absolute priviledge covers proceedings of legislature and the court (the judges, parties, evidence
and so on also the reports). It also covers communication within the executive arm. Communication
between solicitor and client for the administration of justice. The accused party must be exercising
judicial or legislative function- In Majekodunmi v Olopade, it was held that statements by an anticorruption officer was not absolute privilege because he was not exercising judicial or legislative
powers.. Communications made by an officer of a state to another officer of another state was held
to be an absolute privilege in Chatterton v Secretary of State for India.
Qualified privilege: Unlike absolute privilege, Qualified privilege can be negated by malice. Section
15 of the Defamation Act. Qualified Privilege can arise in the following instances:
“” Where the defendant makes the statement in the performance of a legal or moral duty he owes
to a third party: In Ayoola v Okajure, the defendant was asked to write a reference in relation to his
former employee to the prospective employer . He replied with a confidential letter stating that she
was lazy and flippant. The court held that there was qualified privilege in such instance. Can also
arise where the defendant (deeming it contingent) who owes a duty and has a relationship with the
third party warns him about the plaintiff’s behaviour. Communication which is contingent and made
by parties with a common interest in the subject matter.
“” Reporting the commission of a crime to the police. Salmond on Tort posit that the defence
should not avail a person who discloses information without request except there is a confidential
Key-points in the Law by Nwosu Michael.
relationship between the parties. In Economides v Thomopulous, disclosing to the police that the
plaintiff was evading tax was a qualified privilege.
“” Statements made in self-defence: To enable the defendant to repel charges against him and
prevent attack to his reputation. In Osborn v Boulter, a republican complained to his beer suppliers
that the beer supplied was of poor quality. They replied that the republicans may be watering it
down to make it poor.
Note however that the reply must not be unconnected with the attack.
“” Fair and accurate reports of Legislative proceedings: In Oweh v Amalgamated Press of Nigeria, the
plea failed where the defendant stated that a member of the house called the other member a
crook and this was not the case.
“” Fair and accurate reports of Judicial Proceedings: In Omo-Osagie v Okutobo, “Chief Judge tells a
teacher, you are a bad woman”. This was a lie. The defence failed.
“” Fair and accurate report of the proceedings of international and local judicial bodies, tribunals,
and associations.
Reynolds Defence which now gives media houses a reasonable degree of protection in reporting
matters of public interest. Reynolds v Times Newspapers, considering the seriousness of allegation,
whether the information is of public concern, steps taken to verify the information, urgency of the
matter, circumstances of publication, and so on.
There can also be vicarious liability for defamation.
In Derbyshire County Council v Times Newspaper, the court was of the opinion that public
authorities should not be allowed to institute libel actions because they should be open to criticism.
In Omega Bank v Governor of Ekiti, the court noted that a corporate body cannot have feelings.
In Labati v Badmus, the defendants alleged that the plaintiff was involved in exam malpractices and
extortion of money from students. Held to be defamatory.
ECONOMIC TORT.
Tort law has developed over the years in a bid to live up to its aim. The aim of tort law amongst
others include the protection of the individual and his property through the tort of Trespass. The
apportionment of blame and the central aim of encouraging man to live in an accommodating
manner.
The law of tort evolved by inept reasoning of the judiciary. It went from trespass (to person and
chattel) and securing the return of goods trespassed with by the writ of detinue.
It went over to defamation to protect the reputation of an individual. Then to the tort of conversion
and slander of title. Then to the tort of injurious falsehood where a false statement is with malice in
relation to the plaintiff. Tort went over to liability for negligent misstatements in the case of Hedley
Byrne v Heller and Partners Co. The tort of passing off and deceit then arose to provide damages for
negligent or fraudulent misrepresentation- Derry v Peek and to prevent consumer confusion.
In Lumley v Guy, a new tort called interference with contract was developed. In this case, the
plaintiff had employed a lady to sing at the theatre, she was enticed away by a third party. The court
held that he cause damage to the plaintiff.
Then the tort of conspiracy. It is a tort committed where a combination of two or more people
maliciously set out to carry out an unlawful intention so as to inflict damage on the plaintiff.
In Allen v Flood, a union official maliciously procured the dismissal of some union workers. It was
held at the Court of Appeal that it is a tort to maliciously procure the dismissal of another. The
House of Lords overruled, holding that there was no element of combination of 2 or more as such,
Key-points in the Law by Nwosu Michael.
the motives of a single defendant is irrelevant. In Quinn v Leatham, the defendants (members of a
trade union) sought to make sure that the plaintiff (a butler) was dismissed because he had a quarrel
with them. When they failed, they tried to induce the plaintiff’s customers not to deal with him. The
court found conspiracy.
Then to the tort of intimidation. Where the court held that it is any threat to do something unlawful
if one’s demands are not met. For example A telling B to slap C or else he would set his dog on B.
Then to the tort of passing off whose theme is that a man is not to sell his goods on the pretence
that they are goods of another. John walker v Henry ost Vine products v Mackenzie. The tort aims
at protecting the goodwill of a business.
The tort of Passing off the humble beginning from the case of Perry v Truefitt.
FORMS OF PASSING OFF.
1. Imitating the plaintiff’s trade mark.
2. Imitating the getup or appearance of the plaintiff’s goods.
In Reckitt & Colman v Borden, the court granted an injunction to prevent the defendants from selling
their lemon juice in a similar container the plaintiff had been selling theirs.
In Bollinger v Costa Brava wine co, the court extended the scope. Stating that champagne is known
as French Champagne and the defendant cannot market his product as Spanish champagne so as to
confuse the public.
Note however that the plaintiff has to establish that the goodwill of his business has been damaged.
Bradford Corporation v Pickles.
Parker-Knoll v Parker-Knoll International Ltd; in this case both companies were manufacturers of
Furniture one based in UK and the other America which just began trading in UK. An injunction was
granted to stop further trading as the names were too similar to deceive.
Tussaud v Tussaud, the defendant who had left the plaintiff’s employment still retained the
plaintiff’s name. An injunction was granted to prevent usage of the plaintiff’s name.
Niger Chemist v Nigerian Chemist; the court held that the defendants would greatly confuse the
public if they continue to trade in a name (Nigerian Chemist) so similar to the plaintiff’s (Niger
Chemists Ltd).
Other forms of passing off.
__Imitation of Address: the court would look at the extent to which the customers are deceived and
harm caused to the plaintiff’s business. In Day v Brownrigg, the plaintiff’s house popularly known as
“Ashford Lodge”. The defendant then named his own house from “Ashford villa” to “Ashford Lodge”.
The court however held that the plaintiff had no cause of action because he was not able to prove
damage.
---Common Field of Activity.
Formerly, the plaintiff must show that he has a common field of activity as the plaintiff. This has
been criticised. In McCulloch v Lewis A May ltd, the action of passing of failed because the trade of
Broadcasting and selling Cereal are not the same.
----Descriptive words. Unless the name is so unique that it is now associated with the product, the
court would not accord protection. In British Vacuum Cleaner v New Vacuum Cleaner, the court held
that the word, “vacuum cleaner” cannot be protected because it only described the equipment.
Remedies
Injunction, damages and account for profits.
The law then went over to the tort of DECEIT.
Key-points in the Law by Nwosu Michael.
In Pasley v Freeman, it was held that a person who makes a false statement intended to be acted
upon must make good the damage naturally resulting from its being acted upon.
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The defendant must have made a false representation: In R v Barnard, the defendant wore
the robe of an Oxford student and obtained credit for food. It was held that he falsely
represented by conduct. Generally, there is no duty to disclose except;
 There is a statutory duty to disclose: Edginton v Fitzmaurice, the directors of a
company advertised for shares for the purpose of building the company meanwhile
it was for the purpose of paying off liabilities. The court held that there has been
deceit.
 Partial disclosure.
 Active concealment of a fact.
 Where the defendant discover that a previous statement he thought was true is now
false.
The defendant was aware of its falsity: In Derry v Peek, the company invited investors
assuring that their tramway would run on mechanical power. They honestly thought that the
board would approve their request. They did not get the approval It was held that the
defendants honestly believed in the truth of the statement.
Intended that the statement be acted upon by the plaintiff: Langridge v Levy, the court
held the seller liable where he represented his gun to be good and the plaintiff bought it. it
burst and injured the plaintiff when he fired it.
The plaintiff acted in reliance to the statement and sustained damage:
The law then introduced the tort of INJURIOUS FALSEHOOD.
This is similar to but unlike defamation. Here the element of injury to reputation in the minds of
right thinking members of a society is lacking. This tort focuses on economic engagements. The
Younger Committee on Privacy pointed; the malicious publication in a newspaper that a famous pop
singer has joined the monastery would certainly not lower him in the esteem of right thinking
members of the society but he could lose engagements and therefore, money.
The elements of this tort include:
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The defendant made a false representation: In Ratcliffe v Evans, the court held that there
was injurious falsehood where a publication stated that the plaintiff has ceased to trade
which was not the case. In Shepherd v Wakeman, the false statement that the plaintiff was
already married when she was not. She lost suitors.
The representation was made with malice: if the defendant knows that the statement is
false. Meaning the absence of just cause or excuse.
The statement was communicated to a person other than the plaintiff.
The plaintiff suffers damage: in Barrett v Associated Newspapers, the court held that there
is not damage where the defendant stated that the plaintiff’s house was haunted by a ghost.
There may have been damage if it was a commercial enterprise and the assertion reduced
the flow of customers.
In conclusion, the law of tort has been evolving and shall continue to evolve to meet the dynamic
society we live in.
There is what is called the Reynolds Defence which now gives media houses a reasonable
degree of protection in reporting matters of public interest. Reynolds v Times Newspapers,
considering the seriousness of allegation, whether the information is of public concern,
Key-points in the Law by Nwosu Michael.
steps taken to verify the information, urgency of the matter, circumstances of publication,
and so on.