LAW 4305 — LAW OF TORT I.

Course’s Coordinator: Dr B.M. Tijjani.

Course’s Outline:
 Nature and Definition of Torts.
 The Mental Elements of a Tortious Liability:
o Intention to Harm; o Negligence; o Motive, and o Malice.

 Relationship between Torts and Other Related Areas of Law.

o Torts and Contract; o Torts and Crime.

 Capacity of the Parties to a Tortious Action.

 The Principles of Liability in Torts.
 General Defences to Tortious Liability.
 Trespass to the Person. Assault; Battery, and False Imprisonment.

The above course outline is adopted from Onimisi’s care.

LECTURE 1 NOTE
5th August, 2024.

TORT AT CROSSROAD (AN OVERVIEW ON TORT VIS-A-VIS

TORTIOUS LIABILITY)

Preamble:

The word tort is a branch of law which is originated from the medieval age. It is a
direct descendant (child) of the common law. It is principally founded and build
upon a civil wrong otherwise tortious liability conduct regarded as a tort will out-
rightly enable the injured party affected by such conduct deemed as tortious to
approach the court of law and seek redress in the disguise of civil remedy.

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Broadly speaking, tort is a canon otherwise Common law area of liability of
responsibility built or established upon a bedrock of a case law system. Case law is
one of the sources of law. Generally, case law system are court decisions,
pronouncements, rulings, judicial authorities by court of competent jurisdiction,
otherwise courts of record. It is principally stigmatize as the concept and doctrine of
judicial precedent. It is a segment of the law that evolve and developed through the
doctrine of stare decisis otherwise known as Judicial precedent or case law system.

Without much ado, it is an undisputed fact that in every given society, it is

unavoidable that certain categories of persons will be subjected to harm (injury) in
relation to damage, loss, annoyance, discomfort, and so on, as a result of the unruly
behaviours of other people. Be that as it may, tort is a conduct usually committed
against an individual who walks on two legs and by interpretation it include legal
entities e.g., incorporated legal entities, registered companies

Law of Tort is a civil wrong in the sense that it is committed against an individual.
By extension, it encompasses incorporated bodies (i.e., registered companies) rather
than the state.

 The Gist of the Subject Matter

The gist of the subject matter ‘tort’ is that every person has absolute and certain
kinds of interests which are duly protected and adhered to by the law. These
categories of interests can be protected by the last resort of the common man, which
is the court of law, in awarding peculiarly known as damages for infraction or
infringement of that protected interest. The other side of the point is that they can be
protected by issuing an injunction i.e., court order refraining from carrying out such
conduct notwithstanding that there exist circumstances where the victim of tort may
avail himself through the Common law latitude of self-help where a person is
enjoined to exercised reasonable force to extricate himself from injury or harm

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penetrated by the defendant provided that the force used is not more than reasonable
necessary within the meaning of the rule.

Tort is remarkably broad, cumbersome, and complex, subject matter with specify
area of legal liability as the law laydown all-encompassing principles. Therefore,
nothing that the basic pattern that consist of an act or omission by the defendant who
ultimately causes damage to the plaintiff (claimant). Fundamentally, the damage
caused must have falling under the rule of “fault” of the defendant and must be an
injury or harm recognized as attracting legal liability in the eyes of the law.

In a hypothetical case. It goes without saying or rather one will infer from the
interesting fact that XY’s act or conduct has caused (causa sine qua non) harm to
WZ. this does not by any state of imagination give WZ a right to institute an action
against XY’s tortious conduct for damages arising from tortious liability save of
course WZ can justify by way of preponderance of proof that XY’s conduct belongs
to the class of law of tort and that the law upholds and recognized it as actionable
tort namely by establishment of fault in the eyes of law.

 Evolution of Law of Tort

The evolution of law of tort is somewhat clear that it remains an area of law which
is still continuously developing. The process of evolution is in fact a response to
changes in social and economic condition and social values. This is acknowledge by
the judges, same has been given legal flavor in the authority of CHASTER V.
AFSHAR (2004). Lord Stein in that case opines that:

“I am glad to have avoid at the conclusion that the claimant is entitle in law
to succeed. The result is in accordance with one of the most basic aspiration
of the law, namely to right the wrongs moreover, the decisions reflected the
reasonable explication of the public in contemporary society.”

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Accordingly, there are certain tort which do not in anyway require fault emanating
from the defendant. Naturally, this is known as tort of strict liability which is
developed from the locus classicus of RYLANDS V. FLETCHER. The gist of this
case is that, the defendants employed independent contractors to construct a
reservoir on their land. When digging the reservoir, the contractors found "mine
workings" on the land, and failed to seal these properly before completing their work
and filling the reservoir with water. As a result, water flooded through the mine
shafts into the claimant's mines on the adjoining property causing substantial
damage. Part of the argument raised by the defence counsel was that he had the right
to keep anything on his land. The court, thereby, established a new principle of
liability to cover this situation, called the "tort of strict liability". Which is reflected
in the following words:

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

Contemporarily today, most classification of tort and the scope of the subject matter
are found from regional, state and the national civil laws as codes which often spell
out the scope and the limitation and damages e.g., in statute of limitation of actions
bordering on tortious case.

Categories of Tort
Many scholars have revealed tort has been compartmentalize into three classes to
with:

i. Negligent tort;
ii. Intentional tort; and

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 iii. Strict liability.

The reason for the compartmentalization is that tort emerging from negligence are
civil wrongs caused by lack of care, behavior or failure to practice due diligent. For
instance, cases arising from medical practice in relation to medical practitioners
forgetting either scissors or surgical instrument in the body of the patient, failure to
apply due diligence by medical practitioners while cutting the umbilical cord of a
newborn baby but lead to the death of baby.

Where B is playing soccer in the street and accidentally kick the ball to somebody’s
living room through the window, it attracts liability arising from negligent tort.

When we talk of professional negligence by way of literal interpretation, it includes

lawyers.

Intentional tort:

This involves wilful, deliberate harm causing injury e.g. destroying someone’s
reputation by way of defaming that person’s characters. Others include;
intermeddling of legally protected right e.g., battery, assault, false imprisonment and
interference with the operation of companies.

Strict liability covers liability regarding prudence. Such as, if a potatoes peeler takes
one finger off where one operates it i.e.,, as directed by the manufacturer. Here the
manufacturer will be liable. Occupiers liability arises in the case of nuisance,
pollution, noise, loss of livestock, industrial pollution, releasing of toxics in the
premises.

Conclusion
At this juncture, it is quite comprehensive that tort law purely developed through the
operation of the doctrine of judicial precedent (stare decisis). From the scenario, we

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learn one may vigorously observe that the purpose, aim and the objectives for which
the subject matter; law of tort, aims to achieve or serve.

It is quite clear that the subject matter remains an imperfect system and the reason is
that it appears elusively that there are some loses for which it is unavailable to
provide redress, remedy (compensation). The nature of compensation awarded is
largely unliquidated. It is a form of compensation a court of law in its discretionary
powers quantifies and award as it deems fit.

Here again, the law of tort is an incomplete system of compensation. It only

recognises in certain specific areas. It does give recognition to several right on the
general right to compensation.

Law of tort developed through one of the English Common law courts. This court
are Exchequer, Kings bench, and Common plea.

Objectives of Law of Tort

In summary, objectives of the law of tort can be summarized as follows:

1. Compensation
2. Protection of interest
3. Deterrence
4. Restitution
5. Vindication.

LECTURE 2 NOTES
12th August, 2024.

INTENTION, MALICE, AND MOTIVE (REQUIREMENT THEREOF)

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Substantive Nigerian criminal law today is to be found primarily in the two Criminal
Penal statutes i.e., (Penal Code and Criminal Code). Because of the operation of the
long standing rule nullum crimen nulla poena sine lege, both provides for penal
provisions against offences to the person’s property, public order, morality, security
etc.

Accordingly, establishment of crime requires the prove of the essential elements in

doing so namely; actus reus and mens rea concurrently both in time, and space i.e.,
it must be simultaneous. Accordingly, the rule remains as enunciated by the maxim;
actus non facit nisi men sit rea, except in cases of offences negativing the mens rea.

Intention is a fundamental requirements in obtaining a conviction; cases that do not

in any way requires intention as regarded as special cases offences and otherwise
strict liability offences. These are classification of offences that do not require
intentions i.e., without mens rea, no cause of action. The relevant authority here is
the case of MICHEAL EGGAREVA V. THE STATE (1986). It establishes that
mens rea in establishing specific offences is a sin qua non for unlawful homicide
case.

Rashness under the penal code is a form of recklessness and recklessness simply is
the doing of (perilous) act without caring what would happen. The authority relevant
here is the case of R V. AKINDELE (1942). Intention denotes possibility plus
desire knowledge on the other hand as referred to or used in the Penal Code
ostensibly is in the form of forecast i.e., foresight that death will inevitably result.
The long standing authority is the case of HYAM V. DPP (1975), STATE V.
AGBAMGBO (1988), BUBA V. STATE (1992), KADA V. THE STATE (1991).

Reference to the first authority, Oputa JSC and subusequent authority BUBA V.
STATE (SUPRA) per Muritala JCA, a renowned justices in their pronouncement

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regarding intention or mens rea is well perceived when they establishes that for every
crime in criminal law, there is a peculiar mens rea.

Negligence is the inability to take reasonable care required of a person in one station
in life and standard. The above notwithstanding the position of legal luminaries e.g.,
Glavile William gave constructive criticism as when he agreed that negligence is not
really a state of the mental or element mind, he maintained that;

“there is actually no wickedness or ill will strictu senso (in the strict sense of
the word) but neverthe less, it is one form of mens rea required for homicide.”

In narrowing down the aforementioned, classification of intention or mens rea, the

need to examine a not too distant authority. The court in the case of case of
NNWORIE NUALI V. THE STATE (1991) affirms the High Court decision
decision to trial the case de novo (to start from the beginning).

What is now relevant in our Criminal law is that when a person is charged with
murder, the act of the accused person resulting in the death of the deceased is
unlawful. It is no longer necessary to look for the common law ingredient of mens
rea or malice aforethought. The case of YELLI V. THE STATE (2023), AMAO
V. THE STATE (2022).

At this juncture, the purpose of law of tort is principally to compensate unlike

criminal law which seeks to punish the offenders. In the civilized modern world
today, the insurance and social security schemes exists as otherwise alternative
means of compensation. Accordingly, in dissecting the general principles or rules of
liability, the need for intention, prove thereof in civil wrongs, simpliciter means
where a tortfessor (defendant) desires to produce a result completely abhorred
(forbidden) by law.

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Equally, where the tortfessor foresees it and carry on regardless of the fact that the
harmful result may be bad, injuries relating to Economic and Financial Crimes by
extension cybercrime, dubious and fraudulent activity, perjury (falsehood); an
instance where the defendant has made a parole (false) assertion or statement which
he knows to be untrue. In the same case, conspiracy to cause harm against
complainant. This would give th elater right to institute an action in so far as the
defendant’s primary motive caused the injury against the complainant with a view
to recover compensation.

Take note of cases bordering tort actionable per-se and tort requiring proof of
intention. In explaining further motive, simply is the reason for the conduct of a
person. It hinged on why a person did or did not do a particular thing. Generally, it
I swhat caused the oer to act or failed to act and in the eyes of the law, motive is
irrelevant. It cannot be a yardstick or parameter for determining liability in tortous
actions because tortuously, malice means acting towards bad motive or ill will,
wickedness doing something with vengeance, wickedness of mind or recklessness.

Meaning of Malic in the Legal Parlance

In the legal discourse, malice has two bold meanings:

a. Doing a wrong intentionally without lawful excuse. It may amount to will ful
and conscious wrongdoing.
b. Doing any act with an improper or bad motive or anything with the
contemplation or motive that the law forbids.

Be that as it may, the law does not in any way concerns itself with trivialities
(unimportant/irrelevant things) be it small, minor or worthless. The court of law does
not concern itself with speculative, imaginary issues that may tantamount to abuse

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of court process otherwise vexatious issues. It normally stick out or throw out such
trivialities or otherwise provides a minimal damages.

The rule in Common law (Egg shell rule) says that take your victim as you find it.
i.e., a tortfessor is bound to accept his victim as he is. If the victim is healthy and
strong, it would be a defence either way coming to the Common law rule again of
the long standing authority even though overruled in the case of SMITH V.
SELWEN (1914). This case establishes and propounded the principle that where a
criminal proceeding and civil proceedings overlapped, the position of the law is that
before the victim i.e., the complainant instituted a civil action, criminal aspect of that
matter must have been determined but the position carefully examine in most cases.
If followed logically, it would caused miscarriage of justice.

The rule in SMITH V. SELWEN (SUPRA), represented the position of the

Nigerian law on the matter until the decision in the famous case of AKILU V.
FAWEHIMI (1989) and also the case of AKUBAIYAJE V. REIS (1943). This
alongside local enactment and other copious judicial authorities give a resolution or
remedy as an exception to the Common Law rule in SMITH V. SELWEN. In other
words, the position in SMITH V. SELWEN has been abrogated simply because it
conflicted with Nigerian Criminal Code Act and Interpretation Act.

By and large, it is not even consigned with the ground norm (CFRN). See the
provision of section 6(6)(b), section 17(2)(c), section 46(1), section 315(3) and the
wisdom of Niki Tobi (his former lecturer) in the authority of VERITAS
INSURANCE COMPANY LTD V. CITY TRUST INVESTMENT LTD (1993)
and also the case of NWANKWO V. AJAEBU, where the plaintiff reported the
case of an assault, the case has it was reported by the Police in the police authority.
Yet they could not file or bring in criminal proceedings. The plaintiff waited in
limbo. Afterwards the plaintiff instituted a civil action for damages. The defence

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contended or maintained that the civil action cannot proceed because hitherto,
criminal charges have not been filed by the police authority.

The court held that the civil action was not caught up by the rule in SMITH V.
SELWYN which requires that where a case discloses a felony, the civil action
should stay or be suspended until determination of the criminal proceedings.

The position of the law today is that complainanat (plaintiff) having reported the
assault cum battery to the police authority where onerous task is to conduct
investigation and prosecute and where the police sue moto (that is on their own
discretion or willingly) failed to process and place charges on the defendant hitherto,
the accused person cannot be the fault of the plaintiff. Accordingly, the plaintiff or
complainant was free to initiate and file civil proceedings to seek for compensation.
See the provision of section 5 of the Criminal Code Act the reproduction of section
… of the Administration of Criminal Justice Procedure changes the whole position
that is the victim is always at liberty regardless of the criminal proceedings to go to
court and institute civil proceedings.

LECTURE 3 NOTE
19th August, 2024.

COMPETENCE VIZA VIZ PARTIES TO TORTIOUS LIABILITY

As a matter of general rule in demining parties to tortious liability; just like any other
segment of law, the issue of locus standi is paramount. Accordingly, any other adult
i.e., a person who has assumed age of maturity is generally considered competent to
institute an action emanating from tortious contact. In other words, such a person
can sue and be sued in his or her personal capacity. Nonetheless, the age that can
constitutes and also qualify such a status begins with 18 years. This shows that a

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young person (minor) can only sue and/or defend his action only by way of
qualification which can be through an adult friend, parents, guardians, person of
locus parentus bearing in mind, a minor may engage in contractual marital
relationship. Be that as it may, such a minor cannot be charged with commission of
a capital offence/conduct deemed as felony clearly examined in the locus classicus
of ANOZIE V. A.G. LAGOS STATE (2023).

Coming to Child Right Act 2003, it equally follow suits by stating that majority age
starts from 18 years. Equally considering Electoral Act governing election in Nigeria
2020 and its subsequent amendments, it states at what age does adulthood starts
from.

Two conditions are always sin quanon in determining the above:

i. The first category belongs to the person’s class of people who can institute
as well as defend in their personal capacity in case of tortious liability.
ii. Person whose legal competence differs from the former position i.e., those
who have attain the age of majority, women inclusive. This is irrespective
of their marital status, personae involved and cloth in legal personalities
under the relevant laws, principals, agents, officers and directors of
company. In this regards, the memorandum, article and constitution of a
particular company will contain the objective clause by extension the
omnibus clause. The case of FAWEHEMI V. NBA (1989) is a land mark
authority, EZE V. GEORGE (1993), OKWONKWO V. OKOLO
(1988), ASHTON V. TURNER (1980).

 Exceptions to the Rule

For the exceptions to the above, second category of person who can sue but may not
be sued on the ground that such person enjoys immunity on the basis of the provision

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of section 308 of the 1999 CFRN. Others derive their immunity from enactments of
laws in the case of judges, diplomats, ambassadors, legal practitioners, witnesses in
special cases, insane person etc.

Damnum sin injuria and Injuria sine Damno

(damage without legal wrong) and (legal wrong without damage)

The case of ONITIRI V. OJO (2004) spells out the Common law doctrine of
damnum sin injuria and injuria sin damno.

 Damnum sin Injuria

This doctrine simply means a man may have suffered or incurred harm (damage)
and yet have no cause of action in court. Indeed the damage is not for an interest
protected by law of tort under tortious liability.

 Injuria sine Damno

This doctrine spelt it out that some interest are so important that their violation or
infraction is naturally actionable without the requirement of proof of damage.

Further Explanations on the Doctrines

Both the first and second doctrines suggests analytical discourse in the sense that for
a successful action under tortious liability, claimant i.e., plaintiff must at all material
time establish on the balance of probability three key aims:

i. Plaintiff must show through cogency of evidence that the defendant is

under a legal duty to behave or act in a particular way.
ii. Plaintiff must show a concrete evidence that the defendant breached that
particular duty by failing to comply with his or her behavior.

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 iii. The Plaintiff must show through a convincing and compelling evidence
that he suffered injury consequently of which it is occasioned by the
defendant.

The combined of these aforementioned parameters go to establish that an action

falling under tortious liability must in the eyes of the law be justiciable. These
principles of law largely elucidate the preposition that if the act complained of is
otherwise lawful… no matter how bad the motif or ill will is in the eyes of the law,
it’s immaterial and therefore, goes to no issue and therefore not actionable. See the
case of MAYOR BRADFORT CORPORATION V. PICKLES (1895); it is an
instructive leading authority on the above prerposition of doctrine of Damnun sin
injuria causing violation and in such type of case, it will not be valid for a claimant
to approach court of law save where such issue may fall under exception where
motif, ill will, malice may be tantamount to relevant. Anything short of this, is not a
cause of action.

Motif as a Reason for a Particular Conduct

Motif as consider interalia is the reason for a particular conduct. Technically, it may
take either of these forms; noble or ignoble. The latter relates to malice in the eyes
of the law. The former (noble motif) does not in anyway exonorate the defendant in
so far as his conduct is wrongful.

In summary, it means that not every wrongful act is actionable as a tort. There are
some case which naturally cause harm, injury but not treated as tort. The leading
authority cited supra is a clear testimony of this nagging legal issue because the
defendant has prevented underground stream flowing through his land to the plaintiff
land to force them to buy the land at a much height inflated price. The House of
Lords held that; the defendant could not be liable because every land owner has a

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right to take water from his own property even if it means the adjourning neighboring
property are deprived of water all together. This is the position of the principle
known as the Damnun sin Injuria; a wrong without a remedy.

The opposite side of this doctrine is Injuria sine Damno. This is a case where damage
is suffered because interest to be protected is regarded justiciable i.e., violation of
legal right without approval of damage (havoc/destruction). It will amount to valid
claim to a court of law e.g., if one merely tress pass on land belonging to another
without lawful justification. Here the trespass from the beginning can be held
responsible even where no damage is caused by the ordinary entry and the rationale
with such a right stems from the fact that plaintiff, the owner of the land has a right
to non-violation of his bounds in his property (land) and it is this particular right
which have given right

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