TORT 1.1 GENERAL INTRODUCTION

• Isochukwu
• 2
• Tort I

LAW OF TORT.

The word “tort” is derived from the latin word tortus which formerly meant twisted and has come to mean “wrong”.

According to Kodilinye, in the Nigerian Law of Torts

A tort is a civil wrong involving a breach of a duty imposed by law, repressible usually by an action for un-liquidated damages.

AIMS OF TORT LAW.

• Compensation: Tort law aims to compensate (usually by way of damages) the victim who has suffered from the tortious act of the defendan. See Donoghue v. Stevenson.

 

• Deterrence: Tort law seeks to deter people from committing wrongs and taking unnecessary risks because they would compensate anybody that suffers from their wrongful act.

 

• Tort law seeks to apportion blame and losses.
• Tort aims to protect the individual’s interest in property.
• Tort law aims to protect individual’s privacy, safety and security. Protecting against unlawful assault, battery and false imprisonment.
• Tort law aims to protect a person’s reputation an integrity through the instrumentality of “defamation” and “malicious prosecution”.

In summary, tort law seeks to promote the growth and advancement of the society.

 

A BRIEF HISTORY OF TORT

The embryonic form of tort law could be seen in the practice of the 13^th century king’s common-law courts. In those days, actions had to be commenced by the issue of a “royal “writ of trespass[1]” or a “writ of trespass on the case[2]”. If a claimant’s petition could not fall into either of these writs, then he may be left without a remedy. This hardship was remedied by the The Common Law Procedure Act 1852 which abolished the forms of actions and just required the plaintiff to just show that a recognized tort has been committed against him. Tort law grew with cases and statutes.

Nigeria received the English common-law and doctrines of Equity along with the Statutes of General Application that were in force as at 1^st January 1900. These receptions invariably includes the English Law of Tort.

 

TORT DISTINGUISHED FROM OTHER AREAS OF LAW.

The law of tort usually complements other areas of law. It is however a distinct area on its own. For the purpose of clarity, I shall use a tabular representation. PLEASE DO NOT USE TABLES IN THE EXAMINATION.

 

TORT AND CRIME.

Similarities:

Both aim to control the actions of others. Moreover, certain areas of tort like trespass overlaps with criminal law[3].

TORT	CRIMINAL LAW.
A purely civil wrong committed by a plaintiff against a defendant.	An offence against the state.
It is under the Private and Property Law.	A Public Law Subject.
Seeks to compensate the injured party for harm caused as a result of the defendant’s wrongdoing.	Seeks to punish the offender for disobeying the law.
Draws majority of its principles and rules from case law. Though supplemented by some statutes.	Draws most of its principles from statutes/laws. In Nigeria, we have the Criminal Code and Penal Code for the Southern and Northern parts of Nigeria respectively.
To succeed in an action, the balance of proof need only weigh in the plaintiffs favor.	The prosecutor has to prove beyond reasonable doubt that the accused is guilty, to succeed in a criminal case.
Damages awarded goes to the plaintiff.	Fines imposed usually goes to the state.

 

Initially, the rule was: where a case has a tortious and felonious element[4], the prosecution for the felony must have been concluded before a suit in respect of the tort can be instituted-Smith v. Selwyn. This is no longer the stance as both the criminal and tort cases can now run concurrently. See Tika Tore Press Ltd v. Umar, Section 46 of the 1999 constitution.

 

TORT AND CONTRACT.

Although there exists some similarities between tort and contract. For example, a victim of fraudulent misrepresentation in a contract may sue for the tort of deceit.

TORT	CONTRACT.
The duties of the parties are fixed by law.	The terms of most contracts are usually fixed by the parties.
Seeks to compensate for a wrong.	Seeks to enforce agreements i.e. obligations, between parties.
There is no need for privity here. The parties do not need to have a prior relationship/agreement-Donoghue V Stephenson.	To be entitled to sue in contract, the claimant is usually required to prove privity[5].

 

TORTS AND TRUSTS

TORT	TRUSTS
Is a common-law concept	Is an equitable concept.
A claim for damages in tort is un-liquidated[6].	A claim for breach of trusts is liquidated. It is known and quite certain.

 

 

The phrase; damnum sine injuria… injuria sine damno means “damage without legal injury and legal injury without damage”.

This phrase as used in tort mandates that the claimant must show that he has suffered both a legal injury and damage[7]– Bello v. A.G Oyo State. See also Roy v. Prior.

THE ELEMENT IN TORTS

1. INTENTION: a deliberate behavior. The desire to produce a known consequence[8].
2. NEGLIGENCE: Ordinarily means carelessness. At law it has a different meaning. It involves;

– A duty of care imposed by law.

– Breach of that duty by the tortfeasor.

– The breach resulting in damage to the plaintiff. (these shall be discussed in detail later).

3. STRICT LIABILITY: is liability imposed by the law devoid of intention. It does not need to be proved that the defendant intended to commit the tort… it is sufficient if he only breaches the duty owed.
4. MOTIVE: The reason behind a person’s act. In tort, motive is generally irrelevant-Bradford Corporation v. Pickles.
5. MALICE: there are a few torts in which malice is relevant for example, defamation, nuisance, malicious prosecution and so on. Malice may also be relevant in the calculation of damages[9].

Torts may be classified into

1. Trespass to person: Includes; assault, battery, false imprisonment.
2. Trespass to chattel: Includes trespass to land, chattels, conversion, detinue, nuisance, negligence.
3. Interest in reputation – defamation
4. Economic Tort – deceit, passing off, and so on.
5. Interference with judicial process – tort of malicious prosecution.
6. Interference with family relations – the tort of enticement and harboring.

 

TRESPASS TO PERSON/ INTENTIONAL INTERFERENCE WITH THE PERSON.

The torts under this classification includes:

1. Assault.
2. Battery.
3. False imprisonment.
4. Other acts that can cause physical or mental injury. Harassment.

 

Note that under the tort of trespass to person, the plaintiff must prove that the defendant “intentionally” committed the tort… Intention must be proved[10].

 

[1] This writ applied to forcible, direct and immediate threats.

[2] This writ would lie for indirect non-forcible and consequential actions.

[3] See for example See section 351 of the Criminal Code.

[4] That is where a case has liability bordering on both crime and tort.

[5] Persons suing on the contract are usually required to be parties to the agreement.

[6] Meaning that discretion, analysis and calculation would be utilized in deciding the amount to be paid as damages.

[7] The exception to this rule is trespass per se which we shall learn subsequently. There is no need to prove injury in trespass per se. e.g. trespass to land.

[8] A person in law is generally presumed to intend that which is a natural consequence of what he does-Hyam V DPP.

[9] For example, in Hollywood Silver Fox farm v. Emmett, the plaintiffs reared silver foxes for their fur. Silver foxes are very timid and can miscarry or devour their babies if threatened or scared. The defendant was against the farm so he fired a gun with the intention to scare the foxes and impede breeding. It was held that the defendant was liable for nuisance because he carried his act with malice (shooting the gun to scare the silver foxes).

[10] In Letang v. Cooper the plaintiff was negligently run over by the defendant’s car. She brought her claim under trespass to person. The court held that since the act was not intentional, it cannot succeed under trespass to person. She would have succeeded if she brought her claim under negligence. In Gibbon v. Pepper, the court noted that if A carries B’s hand and uses it to slap C, A (rather than B) would be liable because ‘B’ had no intention.