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LAW OF TORT

INTRODUCTION

How Law of Tort was received into Nigeria

The law of tort is a part of the common law of England, which is itself, a part of the
English law. The law of tort came into Nigeria when English law was received into
Nigeria by virtue of local statutes that permitted the application of English law in
Nigeria. The English law which was introduced into Nigeria is made up of three
aspects which includes; Common Law/Equity/ etc, Case law and statutes.

The Sources of the Nigerian law of tort

The sources of the Nigerian law of tort are several. They include:
1. Common law of England, Equity and Statute of general application.
2. Case law (Judicial precedents).
3. Statutes (Legislation)

Definition of Tort
The word ‘tort’ is derived from the latin word tortus, which means ‘twisted’. It came
to mean ‘wrong’ and it is still so used in French: ‘J’ai tort’; ‘I am wrong.’ In English,
the word ‘tort’ has a purely technical legal meaning – a legal wrong for which the
law provides a remedy. Kodilinye (Kodilinye, The Nigerian Law of Torts) defined
tort as: A civil wrong involving a breach of duty fixed by the law, such duty being
owed to persons generally and its breach being redressable primarily by an action
for damages. From the above definitions, one can deduce that a tort is a breach of
a civil duty imposed by law and owed towards all persons, the breach of which is
usually redressed by an award of unliquidated damages, injunction, or other
appropriate civil remedy. Thus, the law of tort enforces rights and liability and
provides remedy in the areas covered by the law of tort which includes the
following:

1. Trespass to person, that is, assault, battery and false imprisonment.

2. Malicious prosecution
3. Trespass to chattel, that is, conversion and detinue
4. Trespass to land
5. Negligence
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6. Nuisance
7. Strict Liability (the Rule in Rylands v. Fletcher)
8. Liability for animals
9. Vicarious liability
10. Occupier’s liability
11. Defamation
12. Deceit (The Rule in Hedley Byrne & Co. Ltd vs Heller & Partners Ltd)
13. Passing Off
14. Economic torts, such as, injurious falsehood, interference with contract.
15. Enticement and harbouring.

De minimis non curat lex is a Latin phrase which means, the law does not
concern itself with trifles.

The objectives of the law of tort

1. Compensation: The most obvious objective of tort is to provide a channel

for compensating victims of injury and loss. Tort is the means whereby issues
of liability can be decided and compensation assessed and awarded.

2. Protection of interests: The law of tort protects a person’s interests in land

and other property, in his or her reputation, and in his or her bodily integrity.
Various torts have been developed for these purposes. For example, the tort
of nuisance protects a person’s use or enjoyment of land, the tort of
defamation protects his or her reputation, and the tort of negligence protects
the breaches of more general duties owed to that person.

3. Deterrence: It has been suggested that the rules of tort have a deterrent
effect, encouraging people to take fewer risks and to conduct their activities
more carefully, mindful of their possible effects on other people and their
property. This effect is reflected in the greater awareness of the need for risk
management by manufacturers, employers, health providers and others. This
is encouraged by insurance companies.

4. Retribution: An element of retribution may be present in the tort system.

People who have been harmed are sometimes anxious to have a day in court
in order to see the perpetrator of their suffering squirming under cross-
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examination. This is probably a more important factor in libel actions and

intentional torts than in personal injury claims which are paid for by insurance
companies. In any event, most cases are settled out of court and the only
satisfaction to the claimant lies in the knowledge that the defendant will have
been caused considerable inconvenience and possible expense.

5. Vindication: Tort provides the means whereby a person who regards himself
or herself as innocent in a dispute can be vindicated by being declared
publicly to be ‘in the right’ by a court. However, again it must be noted that
many cases never actually come before a court and the opportunity for
satisfaction does not arise.

6. Loss distribution: Tort is frequently recognized, rather simplistically, as a

vehicle for distributing losses suffered as a result of wrongful activities. In this
context loss means the cost of compensating for harm suffered. This means
redistribution of the cost from the claimant who has been injured to the
defendant, or in most cases the defendant’s insurance company. Ultimately,
everyone paying insurance or buying goods at a higher price to cover
insurance payments will bear the cost. The process is not easily undertaken
and it involves considerable administrative expenses which are reflected in
the cost of the tort system itself. There are also hidden problems attached to
the system, such as psychological difficulties for claimants in using lawyers
and the courts, and practical difficulties such as the funding of claims which
may mean that many who deserve compensation never receive it. It has been
suggested that there are other less expensive and more efficient means than
tort for dealing with such loss distribution.

7. Punishment of wrongful conduct: Although this is one of the main

functions of criminal law, it may also play a small part in the law of tort, as
there is a certain symbolic moral value in requiring the wrongdoer to pay the
victim. However, this aspect has become less valuable with the introduction
of insurance.

The Rule in Smith v. Selwyn (1914) 3 KB 98

The common law rule in Smith v. Selwyn states that where a civil wrong is also a
crime, prosecution of the criminal aspect must be initiated before any action for Tort
can be filed by the plaintiff and be heard. However, the rule in Smith v. Selwyn
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which has been abolished in Britain, also no longer apply in Nigeria. In view of the
fact that the rule is a breach of the Nigerian constitution and other statutes, that is
to say:

1. Criminal Code Act.

2. Interpretation Act.
3. The Nigerian Constitution.

Classification of torts
The classification of torts helps to ensure a better understanding and study of the
law of tort as a whole by putting it in a better perspective. It also helps to know the
relationship between various torts. Torts may be classified according to the kind of
rights or interests which they protect. Therefore, torts may be grouped according to
the followings as those that protect or concern: Let us briefly examine classes of
torts:

1. Torts Protecting Personal Interests: The torts that protect a person, or

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

2. Torts Prohibiting Interference with Judicial Process: The torts that

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

3. Torts Protecting Property Interests: The torts that protect interests in

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

4. Torts Protecting Interests in Reputation: The tort that protects the

reputation of a person is the tort of defamation. The law of defamation which
is divided into libel and slander protects a person’s right to his good
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reputation. It deals with wrongs to reputation. Defamation is also a crime. In

criminal law, defamation consists of slander and libel. However, if a person
does not have a good reputation, then there is nothing for the law to protect
as it is said in Latin nemo dat quot non habit.

5. Torts Protecting Economic Interests

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

6. Torts Prohibiting Interference with Relationships

The torts which protect relationship between one person and another person
include, interference with contractual relations, enticement and harbouring,
etc. On the other hand, the law of tort cares about economic and contractual
relationships. The torts of enticement and harbouring are old common law
torts which protect the matrimonial rights of married persons; for instance the
right of one spouse not to be denied the consort of the other spouse by a
third party. Although, enticement and harbouring are valid torts in Nigeria,
they have been abolished in England.

DAMAGE AND LIABILITY IN TORT

Often times, for a defendant to be held liable for a tort, the plaintiff must have
suffered damage as a result of the conduct of the defendant. Where damage has
been proved by a plaintiff, then the test of reasonable foreseeability or remoteness
of damage will be applied to determine the extent, scope or amount of damage for
which the defendant will be held liable and ordered to pay to the plaintiff. However,
because damage does not always lead to liability, three principles exist with
respect to damages. These are:
1. Damage without legal wrong: that is damnum sine injuria. This means
that there is no legal remedy even though loss was suffered.
2. Legal wrong without damage: that is injuria sine damnum. This means
that there is liability and remedy based on fault, even though there is no
damage.

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3. Damage leading to tortuous liability and legal remedy: This is damage

and legal remedy. The word “damage” also means the money
compensation which is usually paid by a wrongdoer to a person who
suffered a loss or injury. Thus, damage is the estimated money
compensation which court usually orders a defendant to pay to a
plaintiff or claimant who has suffered a loss or injury.

Intentional Damage
The general rule of law is that a tortfeasor (the wrong doer) is usually liable for his
intentional tort. Thus, intentional harm or mischief is an actionable tort, whether the
act is malicious, innocent or intended as a joke, etc is irrelevant. Accordingly,
intended, intentional or malicious damage or harm is never too remote and will be
compensated so long as the damage is foreseeable. Furthermore, the extent or
magnitude of the damage need not be foreseeable by the reasonable man for it to
be compensated.

Eggshell Skull Rule

This principle of liability is also known as the “egg shell” rule, “thin skull” rule or the
“unusual plaintiff’s” rule. Under the egg shell principle, a tortfeasor “takes his victim
as he finds him”. For example, Where ‘A’ negligently knocks ‘B’ down and
unfortunately great injury is inflicted because as it is later discovered, B is
unhealthy, prone to injury or has a “thin skull”, A will not be excused by
saying that if B had been a normal person, injury would not have resulted.

Similarly, where “D” gives “E” a light blow which expectedly should
only bruise E, but because E has a thin resistance “thin skull” or “egg shell”
and he dies, the law will regard D as liable for E’s death. This rule applies to
all persons with unusual health conditions, including haemophiliacs, that is,
persons who tend to bleed severely as a result of the inability of the blood to
clot easily. This principle is also called the “unusual plaintiff’s” rule.

A person is taken as intending the natural consequences of his action

The general rule of law is that a person is taken as intending the natural
consequences of his action.

Strict liability in Tort

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Strict liability means liability without fault. It is responsibility for a wrong without the
requirement of negligence, fault or intention on the part of a wrongdoer. Strict
liability is liability based on the breach of the law without more. Strict liability is
common in respect of extra-hazardous activities, product liability, or keeping of
dangerous animals etc. As a general rule, in strict liability torts, the test of
reasonable foreseeability of damage as a basis for liability is not applicable. Thus,
in some torts, a defendant is held strictly liable for his torts, that is, the defendant is
liable once the tort occurs whether or not the act happened accidentally, innocently,
negligently or unintentionally. Examples of strict liability torts include:

1. Product liability or consumer protection

2. Liability for animals; and
3. The rule in Rylands V. Fletcher (1868) LR 3 HL 330; 37 LJ Exch. 161.

Product Liability: Consumer Protection, Product liability is the liability of a

producer, retailer, importer or supplier for any loss or injury caused by his product
whether due to its defect or some other reason. In the area of product liability, strict
liability is common as in most cases, the alleged tortuous acts are strictly prohibited
by statute.

Liability for Animals The general rule of law is that dangerous animals should not
be brought into contact with persons, exposed or given opportunity to injure
persons. Therefore, a keeper is liable for the act of a dangerous animal, even
though the defendant keeper never intended the harm that was caused nor was
reckless in letting it happen. Therefore, a person keeps an animal at his own peril.

Motive, Intention, Malice and Liability in Tort

Motive is the reason for the conduct of a person. It is why a person did or did not do
a thing. Motive is what caused the doer to act or fail to act. It is what made a
tortfeasor to do what he did. As a general rule, motive is not relevant for
determining liability in tort. Generally, in order to determine liability, the issue is
whether a tort has been committed; and where proof of damage is necessary for a
successful claim, whether damage was done. Therefore, if the conduct of a
tortfeasor is unlawful, the fact that he committed the tort for good reason will not
excuse him from liability. Likewise, if the conduct of a tortfeasors lawful, the fact
that he had a bad motive or reason for doing it will not render him liable. In other
words, a good motive will not excuse a tort and a bad motive will not make an
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innocent or lawful act a tort.

Malice means acting from a bad motive. Ordinarily, malice means ill will or
wickedness. It is doing something with ill will, wickedness of heart, spite or
recklessness. It is doing something with a bad motive or bad reason. In legal terms,
malice means two things.

Intention is the reason for the conduct of a person. Intention is the purpose, goal or
aim of a conduct. It is the goal of the conduct under question. In the law of torts, the
general rule is that the motive, malice or intention for doing an act is irrelevant.

TRESPASS TO THE PERSON

Trespass to person is any intentional interference with the body of another person.
It is interference with the body of another person or his liberty. It is an invasion of
the body of another person. Trespass to the person consists of three types of tort.
These are assault, battery and false imprisonment:

ASSAULT
Assault is putting a person in reasonable fear of imminent bodily harm; threatening
to do violence to a person short of actually striking the person. Therefore, any act,
gesture, or menace by the defendant which puts the plaintiff in fear of immediate
application of force to his person is an assault. words alone, that is mere words do
not amount to assault. To amount to
an assault, the intention to apply force to the plaintiff must be shown by some
action or gesture, however slight or subtle and not just in words or speech. R v
Ireland & Burston (1997) 4 All ER 225 HL. The defendants made repeated silent
phone calls to three victims. In some calls all he did was resort to heavy breathing.
The victims were stalked for months and were afraid to be alone. The victims
suffered mental illness or depression. The House of Lords held that there
was assault. For an assault to be committed, the act of the defendant
complained about must be such that would put a reasonable man in fear that
force is about to be applied to him. This test is an objective test and it is not
subjective to any particular plaintiff alone. Therefore, where the threat would not put
a reasonable person in the shoes of the plaintiff in fear of violence, the tort of
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assault is not committed. However, the mere fact that the plaintiff who was
threatened with battery is a brave person and was not frightened by the
threat, will not bar the plaintiff from successfully claiming damages for
assault.

BATTERY
Battery is an actual application of force on a person or any contact, touch, force or
bodily harm. Battery is an unlawful application of force or violence on another
person without the person's consent. However, slight the degree of force. Some
form of contact, direct or indirect is necessary, bodily injury need not result. The
defendant must have acted intentionally or negligently. Examples of Battery
includes:

1. Beating with a stick,

2. pouring water on a person, or shooting a person with a gun,
3. Knocking a person down, or running a person down with a motor vehicle, 4.
spitting on a person's face or throwing stone at a person.
4. Removing a chair from under a person who thereby falls to the ground.
5. Pulling a person away from something for his own good.
6. Setting a dog to attack a person, etc.

Battery Need Not Be Violent, Inflict Pain, Nor Injury

It is not necessary that the contact be violent or inflict pain and injury need not
result. Therefore, touching a person, or touching a person's cloth or anything
attached to a person, if done unlawfully, wilfully, or angrily is battery. Therefore,
there may be battery without violence. Also, a surgical operation when done
unlawfully without the patient's consent may constitute battery. Accordingly, battery
includes the slightest contact, touch or force, so that harm need not result.

FALSE IMPRISONMENT
False imprisonment is denying a person freedom of movement or personal liberty
without lawful justification. False imprisonment is the total restraint of a person
without lawful justification. It is the unlawful bodily restraint, imprisonment or arrest
of a person. It is also the restraint of another person without his consent and
without lawful justification. Any detention, bodily restraint, denial of personal liberty,
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or freedom of movement of a person in any place and in any form without lawful
justification amounts to false imprisonment. See Shugaba Darma v Minister of
Internal Affairs (1981) NCLR459. Some of the characteristics of false
imprisonment are:

1. Depriving another person of his right to personal liberty and freedom of

movement without just cause.
2. Compelling a person to remain where he does not wish to remain or to go to
where he does not wish to go.
3. Restraint need not be in any cell or prison but may be in the open street.
4. There need not be battery.
5. The use of authority, any influence, order, trick, or request is sufficient so long
as the person is available to his captor.
6. The person need not be aware that he is being detained at the time.

Defences to Trespass to Person

The defence to an action for trespass to person includes:

1. Self-defence or Justification. Under common law, a person has a right of self-

defence. The only requirement for a successful plea of self defence is that the
self-defence should be reasonable or proportionate. This includes self-
defence and or the defence of another person, especially, where a person is
morally or legally obliged to protect another person.

2. Defence of property; A person may commit commensurate or reasonable

trespass to person, such as assault, battery or false imprisonment in order to
protect his property or the property of another person which he has a moral or
legal obligation to protect.

3. Consent of the plaintiff Express or implied consent is a complete defence.

Consent is a defence when it is obtained freely in the absence of fraud, trick,
deceit, force, duress or undue influence and so forth. Accordingly, As a
general rule participants in sports are deemed to consent to reasonable
contact within the rules of the game except where the act is unreasonable,
involves considerable hostility or is deliberate. Etc.

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The Remedies for Trespass to Person

A plaintiff in a claim for trespass is entitled to a number of remedies. These include:
A declaratory judgement, declaring the rights of the plaintiff to enjoy the
fundamental right to dignity of human person, right to personal liberty, right to
freedom of movement and so forth as guaranteed under the Nigerian Constitution.

NEGLIGENCE
Negligence in torts means omission to do something which a reasonable man
would do or do something which a reasonable man wouldn’t do. Negligence is the
breach of a legal duty to take care which result in damage underserved by the
defendant to the plaintiff. This unlike intentional tort where the defendant desired
the consequences. Here it is undeserved damage to the plaintiff. Under negligence
there are three main things to note; the presence of duty of care, the breach of the
duty, and damage (injury) as result of the injury.

DUTY OF CARE
The development of this tort is categorized into 3 phases. The first phase was
when negligence was merely a component of other torts. The second phase when
Negligence develop into action on the cases and this saw the beginning of
negligence as an independence tort. The third phase was from the decision of
Donoghue v Stephenson (1932) Ap 562. In this case, Negligence was fully
recognized as an independent tort capable of extension into new category. To
establish Negligence the plaintiff must proof three things;

1. He must prove the existence of legal duty of care

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

Whether a legal duty exists or not depend on reasonable foreseeability of the

injury. This test was propounded by Lord Atkin in Donoghue v Stephenson: Lord
Atkin said “You must take reasonable care to avoid acts or omission which you can
reasonably foresee would be likely to injure your neighbour and as to who is your
neighbour, Lord Atkin said “your neighbour in Law include those persons who are
so closely and directly affected by your acts, that you ought reasonably to have
them in contemplation as being so affected when you are directing your mind to the
act or omission that are called to question”.

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So your neighbour does not mean those closer or nearest to you but those who
you foresee likely to be affected by carelessness on your part. In Donoghue v
Stephenson (19832) AP 532 a manufacturer of Ginger Beer sold his product to a
retailer, the retailer resold it to a lady who bought it for a friend of her’s who was the
plaintiff in this case. The plaintiff had consumed most of the ginger beer when she
noticed the decomposed remains of a snail in the beer. She became so sick that
she had to be hospitalized and sued the manufacturer for damages in respect of
her injury. The manufacturer claimed that there was no contractual relationship
between it and the consumer and for that reason the plaintiff is not entitled to an
action. It was held by the Court that it is true that the plaintiff does not have
contractual relationship with the manufacturer, but the plaintiff nonetheless is
entitled to an action in tort because his action was not based on contract.

Osemobor V Niger Biscuit (1973) 1 CCHC J At 71. In this case the plaintiff was
eating some biscuit which he bought form a shop when he felt a hard object, he
then found a decay tooth embedded in the biscuit, the plaintiff became ill and sue
the manufacturer. The court applied the principle in Donoghue v Stephenson and
held that the manufacturer owes a duty to ensure that the plaintiff does not suffer
harm as a result of using the defendants’ goods.

BREACH OF DUTY OF CARE

For an action in Negligence to succeed, it must be proved that the defendant has
breached his duty of care; in other words that he has not done what he ought to
have done in the way he ought to have done it or has done what he ought to have
done negligently. In White v Bassey (1966) 1 NWLR 26: a motorist was driving
along the street on a rainy day. It was proved that he did not speed and was not
careless. A five-year-old boy dashed along the road and was knocked down by the
car. It was held that the motorist had a duty of care all right along a highway
particularly on a raining day not to speed and to be mindful of other road users. But
in this particular case, since he had done what was expected of him under the
circumstances, he had not breached the duty.

The Likelihood of Harm: The greater the likelihood that the defendant conducts
will cause harm, the greater the amount of caution required of him. In the Lord
Wrights words in Northwestern Utilities Ltd v London Guarantee and Accident Co.
Ltd (1936) A 108 at P. 126. “The degree of care which the duty involves must be
proportioned to the degree of risk involved if the duty of care should not be fulfilled.
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The Seriousness of the Injury that is risked: The gravity of the consequences if
an accident were to occur must be taken into account. The classic example is
Paris V. Stepney Borough Council (1951) AC 367: Here the defendant employed
the plaintiff as a mechanic in their maintenance department. Although they knew
that he had only one good eye, they did not provide him with goggles for his work.
While he was attempting to remove a part from underneath a vehicle, a piece of
metal flew into his good eyes and he was blinded it was held that the defendant
had been negligence in not providing this particular workman with goggles, since
they must have been aware of the gravity of the consequences if he were to suffer
an injury to his one good eye.

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

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

STANDARD OF CARE

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

Moral Qualities and Knowledge: A man is expected to have that degree of

common sense or knowledge of everyday things which normal adult would posses.
For instance, a reasonable person knows that petrol is highly inflammable, that
solid objects sink in water and that gas is poisonous when inhaled. Furthermore,
where the defendant holds a particular position, he will be expected to show the
degree of knowledge normally expected of a person in that position. Thus, for
example, in the Over Sea Tankship (UK) Ltd vs Mort Dock & Engineering Co
Ltd (1967) 1 AC 617, (Wagon Mound (No.1)) the privy council took the view that
shipowners were liable for a fine caused by discharging oil from the ship into
Sydney Harbour, because their chief engineer ought to have known that there was
a real risk of oil catching fire even though discharged in water. Again, it is clear that
an employer is required to know more about the dangers of unfenced machinery
than his workman. With regards to facts and circumstances surrounding him, the
defendant is expected to have observed that a reasonable man would notice. The
occupier of premises, for example, will be negligent of the fails to notice that the
stair are in dangerous state of disrepair, or that a septic tank in the garden has
become dangerously exposed, so that lawful visitors to his property are put at risk.
Moreover, a reasonable occupier is expected to employ experts to check those
installations which he cannot through his lack of technical knowledge, check
himself such as electrical wiring, or a lift.

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

Intelligence: In determining whether the defendant in his action came up to the

standard of a reasonable man, the court will measure those actions against the
conduct expected of a person of normal intelligence and the defendant will not be

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excused for having noted “to the best of his own judgment” if his “best” is below
that to be expected of a man of ordinary intelligence.

Examples of duty of care:

1. It is the duty of all road users, at all times to keep a look out so as to avoid
colliding with other road users. It has been stated in Ngilasi V. Motorcap Ltd
2000 12CNJ 105 that it is the duty of those driving when it is dark at such a
speed and in a way that they are able to stop within the range of visibility.

2. In Okonkwo vs Medical and Dental Practitioners’ Disciplinary Committee

(1999) 9 NWLR Pt 617 pg 5, it was held that as the relationship of patients
and doctors is always a special one, the patient having put his health and life
in the doctor’s hand, the use of reasonable care is required of the doctor and
as the reasonable care can be presumed by Law.

3. In Owena Bank vs Emok (2001) 41 WRN Pg 119 at 130 it was held that “a
banker is vicariously liable to its customers where he fails or neglects to
adhere strictly to its customers instruction or where it fails to observe banking
rules and regulations and such noncompliance to customer’s instruction or
banking rules and regulations led to the customer incurring any loss, damage
or injuries”. A legal practitioner shall not be immured from liability for damage
attributed to his negligence when acting in his capacity, any person
purporting to limit or exclude his liability in any contract shall be void.

RES IPSA LOQUITUR

Scott v London and st Katherine Cockes (1855) 3 H of L 596. The plaintiff a custom
officer was passing through the door of the defendant warehouse when 6 bags of
sugar fell on him. The judge of first instance directed a discharge verdict for the
defendant on the ground of lack of negligence, the court of Appeal ordered a retrial
and it was in that case that the rule “res ipsa loquitur” was formulated. In Ifeagwu
vs Tabansi Motors Ltd (1972) 2 ECSLR 790, the plaintiff was sitting at his
brothers shot along Onitsha – Enugu express way at a village, when a petrol tanker
with 3,000 gallons of petrol, collided with a nearby electricity pole, overturned and
busted into flame. The plaintiff was badly burned in the inferno and subsequently
sued the defendant, the employer of the tanker driver relying on Res Ipsa Loquitur.
The court held that it applies.
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DEFENCES TO THE TORT OF NEGLIGENCE

Contributory Negligence: This simply mean the negligent of the plaintiff and the
negligent of the defendant combined together brought about the injuries
complained of. Where a contributory negligent is raise and upheld it only mitigate
the amount of compensation.

Volunti no fit injuria (defence of consent): This simply mean that no injury is
done to someone who consented to it. In other words, no person can enforce a
right which he voluntarily waived or abandoned. E.g cars parked at owners risk.

OCCUPIER’S LIABILITY

Duty Owed to Visitors

The warning must be sufficient to inform the visitors. As far as Children are
concerned the occupier must ensure a high standard of care enough to protect the
children from injury. In Glasgow Corporation v Taylor (1922) 1 AC 44, there was
a botanical garden which was open to visitor to view. In this garden was a tree that
had fruits that looked like cherry; a boy of 7 years who was a visitor in the botanical
garden plucked the fruit, ate it and died. His next of kin sued the corporation. The
Corporation was held liable. They argued that the boy was a trespasser who was
allowed to admire the garden but not to pick fruit. The fruit was in fact poisonous,
and nothing was done to prevent children from moving near that tree. It is stated
that where a visitor gets injured despite the warning and with full knowledge of the
danger, the occupier is not automatically exonerated. In this situation, court will still
question whether, despite the warning and with full appreciation of the danger, the
visitor reasonably incurred the injury. The duty of the occupier towards a visitor
extends to the property of visitors.

NUISANCE
Nuisance can be defined as any source of inconvenience or annoyance; nuisance
has a very restrictive scope in that not every annoyance or inconvenience is
actionable. unlawful interference with the enjoyment of public bliss, or of land
by an occupier. The essence of nuisance is interference with comfort of occupier
of land or house where injury occurred. Nuisance can be sub divided into Public
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and Private nuisance. A Public Nuisance is committed when an act that affect the
general public or a section of it is carried on. In other words, a Public Nuisance
interferes with the enjoyment of ‘orderliness’ by the general public. if the person
whose right is so infringed is an individual, the nuisance is a private one, the private
nuisance is within the competence of the victim to prosecute civilly, the public
nuisance is a criminal matter for prosecution by the Attorney-General.

Flowing from the foregoing, let us now consider some differences between Public
and Private Nuisance.

1. A public nuisance affects the public generally, while a private nuisance

affects a party privately.

2. Public nuisance is a crime, and a tort when particular damage is proved by an

individual. However, private nuisance is solely tortious.

3. Public nuisance is actionable by the Attorney General, while private nuisance

is not.

4. To succeed in Private Nuisance, the plaintiff must have an interest in the

land. Such an interest is unnecessary in an action arising under public
nuisance.

DEFAMATION
Defamation occurs when there is publication to a third party of words or
matters containing an untrue imputation against the reputation of individuals,
companies or firms which serve to undermine such reputation in the eyes of
right-thinking members of society generally, by exposing the victim to
hatred, contempt or ridicule.

The tort of defamation acts to redress unjustified injury to the claimant’s

reputation and can be divided into two areas, slander and libel. Slander is
the publication of defamatory words or actions in a temporary form, for
example by spoken word. Libel is the publication of defamatory materials in
permanent form e.g containing in a document form.

ENTICEMENT AND HARBOURING

The tort of enticement and harbouring is designed to protect marital and family
interest. Enticement is consists in persuading, inducing, instigating and procuring a
wife/husband of another without lawful justification to leave her/his and remain

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apart from her/his husband or vice versa. While harbouring consists of merely in
giving a shelter to a run away wife or vice versa.

PASSING OFF
Passing off is a wrong, at common law tort which protects the goodwill of a trader
from misrepresentation or misleading the public into believing falsely, that the
brand being projected was the same as a well-known. The law will not allow a man
to sell his own goods under the pretence that they are the goods of another
man. Legally, the tort of passing off aims to protect the right of property that exists
in goodwill. Goodwill is defined as the part of business value over and above the
value of identifiable business assets. So basically, it is an intangible asset. It
enables a business to continue to earn a profit that is in excess of the normal or
basic rate of profit earned by other businesses of similar type. To sum it up, the tort
of passing off covers those cases where one trader falsely misrepresents his goods
as those of another trader/brand, which has a good reputation/goodwill in the
market and thus leads to damaging his goodwill and this law aims to protect traders
from this form of unfair competition. E.g the case of Niger Chemist v Nigeria
Chemist, (1961) All N.L.R. 180 in this case the defendant was running his business
using a similar name to that of the plaintiff. The court held that the name "Nigeria
Chemists" is so similar to the name "Niger Chemists" as to be likely to cause
confusion, the plaintiff is entitled to an injunction restraining the defendants from
using that name or any other name closely resembling "Niger Chemists."

DECIET
The tort of deceit is a type of legal injury that occurs when a person intentionally
and knowingly deceives another person into an action that damages them.
Specifically, deceit requires that the tortfeasor:

• makes a factual representation,

• knowing that it is false, or reckless or indifferent about its veracity,
• intending that another person relies on it,
• who then acts in reliance on it, to that person's own detriment.
Deceit dates in its modern development from Pasley v. Freeman. Here the
defendant said that a third party was creditworthy to the claimant but knowing that
the third party was broke. The claimant loaned the third-party money and lost it. He
sued the defendant successfully. In Hedley Byrne & Co Ltd v. Heller & Partners
Ltd it was decided that people who make statements which they ought to have
known were untrue because they were negligent, can in some circumstances, to
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restricted groups of claimants be liable to make compensation for any loss flowing
to their representation.

MALICIOUS PROSECUTION
Malicious prosecution under Law of Torts refers to the setting the law in motion
against someone or institution of false criminal/bankruptcy/liquidation proceedings
against an individual that are motivated out of malice and are not supported by any
element of reasonable or probable cause and the action ended in favour of the
plaintiff. The following are elements to prove in malicious prosecution:

1. The defendant must have instituted a false proceeding against the plaintiff.
2. The proceedings so instituted were as a result of sheer malice and must not
have any element of reasonableness or probability.

3. The end result of such proceedings must necessarily be in the favour of

plaintiff, be it acquittal or suspension of the suit.

4. It is for the plaintiff to prove that these proceedings have arbitrarily interfered
with his liberty and has led to adverse ramifications on his/her reputation in
the society.
The suit of malicious prosecution serves two purposes. The first being that it
enables the plaintiff to sue the defendant, the person who had wrongfully instituted
case with no probable cause. The Second purpose is that it leads to protection of
one’s liberty and reputation not only through way of damages but also through
creating a deterrent effect on the wrongdoers. This preservation is in coherence
with the Fundamental rights enshrined in the Constitution of Nigeria.

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