N.B. This article is particular to Nigeria.

Trespass to Land

Trespass to Land is intentionally entering into land, remaining on land, placing or projecting any object upon land in possession of another, without lawful justification.

Anyone in possession of land may maintain an action against any intruder who makes an unauthorised entry. The form of action that existed for this type of unauthorised entry of land was ‘ trespass quare clausum fregit’. That is, trespass because he has broken the close . ‘Close’ in colloquial parlance meant enclosure but trespass may be committed on unenclosed tracts of land.

How trespass to land can be committed

Trespass to land may he committed in any one or more of the following ways:

1. Unauthorised entry into the land.
2. By abusing the right of entry.
3. Placing or projecting some object upon the land.

Who Can Sue For Trespass to Land?

A trespass to land is a wrong against possession . Any unlawful interference with land or building in possession of another is actionable. Therefore to succeed, the plaintiff must show that he is in possession of the land . Matthew Echere & ors v Christopher Ezirike (2006) 12 NWLR pt 994 336.

In Olagunju v Yahaya (2005) All FWLR pt 247 1466 para a – b, the court held as follows:

” Trespass is a wrong committed against a person who is in exclusive possession of the land trespassed
unto. When a parcel of land which was trespassed onto was in lawfully exclusive possession of
another person, a suit in trespass is not maintainable by the owner who had no right to immediate
possession at the time the trespass was committed. “

The circumstances where one who does not have possession of land can sue for trespass as seen in Soleh Boneh Ltd v Ayodele [1989] 1 NWLR pt 99 549 at 551, where the Supreme Court said as follows;

Where the trespass has caused a permanent injury to the land hereby affecting its value, a person not
in possession but he is entitled thereto in reversion can sue for injury to his interest without waiting till
his future estate falls into possession.

See:
Ugoji Vs. Onukogu (2005) ALL FWLR (Pt. 271) 66 @ 78 paragraphs C-E
Amakor v. Obiefuna (1974) 1 All NLR (Part 1) 119.

Note that even a person in wrongful possession can bring an action for trespass against anyone who unlawfully enters the land except the true owner or anyone acting in the authority of the owner.

It should also be noted that trespass to land is a wrong repressible per se . This means that mere entry upon land or building in the possession of another without lawful authority is actionable trespass even if no damage is caused . – Stirling Civil Engineering (Nig) Ltd v Ambassador Mahmood Yahya (2001) All FWLR pt 263 628 at 646.

Acts of Trespass

1. Trespass by unjustifiable or wrongful entry
   This is regarded as the commonest form of the trespass to land . It involves personal entry by the defendant or some other person procured by the defendant into a land or building in possession of the plaintiff . The slightest crossing of the boundary of the plaintiff is sufficient to enable him recover damages. – Inyang v Registered Trustees of the first century
   gospel church (2006) All FWLR pt 314 279 at 301.
   
   Where the defendant intentionally entered into the plaintiff’s land, he may still be liable in trespass and it would not avail him to say he acted under a honest but mistaken belief that he was on his own land or that he has the right of entry or that the land is public land – Ugoji v Onukogu (supra).
   
   Note that entry can be above or below the surface ground or into the airspace above the land.
   
2. Abuse of Right to Entry:
   If the defendant refuses to leave after expiration of his right of entry or use of land, he becomes a trespasser.
   
   Alternatively, if due to the misbehaviour of the defendant, the plaintiff revoked his right to be on the land and the defendant ignores a request to quit , he is a trespasser. – Balogun v Alakija (1963) 2 ANLR of 115.
   
   Therein, A employed B as a rent collector. One night after business hours, B allowed A to enter his house, but shortly afterwards, an argument ensued and B asked A to leave and A became abusive and assaulted B. He did not leave B’s house until about fifteen minutes after he had been requested to leave. A was held liable to be in Trespass.
   
3. Placing or Projecting Some Objects Upon the Land:
   Placing any material object on land in possession of another is trespass. Similarly, projecting an object onto the plaintiff’s land.
   
   Note that the act causing the trespass must be direct or immediate and not indirect or consequential.
   Thus, where the defendant throws any object onto the plaintiff’s land, it is trespass but to pile or gather rubbish near the plaintiff’s land may constitute nuisance and not tort.
   
   In the case of Onasanya v. Emmanuel (1973) 4. CCHCJ 1477. The complaint of the plaintiff was that the defendant encroached about ten feet upon land in his possession when the defendant was laying foundation of a building. Further that the defendant had thrown water and refuse into his land and allowed excreta to escape onto his premises.
   
   It was held that throwing water and refuse were direct acts and this amounted to Trespass while the escape of excreta was indirect invasion and therefore not trespass but nuisance.
   
   Where a person wrongfully occupies a property in the possession of another or wrongfully places any object thereon, he will be liable for continuing trespass which is actionable from day to day, so long as the trespasser or the object remains on the land. See the case of Andrew Okito v. Vincent Obioru (2007) All FWLR pt. 365 pg 568.

Scope of Trespass to Land

The owner of the land is presumed to own everything beneath it, the centre of the earth and above it to the heavens .

This is expressed as “Cuius est solum, eius est usque ad coelum et ad inferos”. See the case of Corbett v. Hill (1870) L.R 9 Eq.671. Thus, any unauthorized interference with the subsoil, for example, digging for minerals or subterranean activity or the violation of the airspace above the land is trespass.

Note that this maxim cannot be regarded as decisive in modern times when mineral exploitation and Air travel and Satellites are commonplace. Even more than several hundred years ago, it was described as “fanciful” by Bowen L.J in Wandsworth Board of Works v. United Telephone Company Ltd. (1884) 13. 2B Division pg. 904.

The modern attitude as shown by authorities is to ignore the literal interpretation of the maxim.

Thus, it has been held that the rights of an occupier in the airspace above his land extend to only such a height as is necessary for the ordinary use and enjoyments of land and buildings thereon.

Consequently, there was no trespass where the defendant flew his aircraft at a height of several hundred feets above the plaintiff’s house. See the case of Bernstein v. Skyviews & General Ltd. (1977) 3 EWHC QB 1 High Court.

Note however that if an aircraft or anything in it falls to the ground, then there is trespass. See Section 49, Civil Aviation Authority Act Cap C13 LFN 2010. It provides:

Section 49(1) “No action shall lie in respect of trespass or nuisance by reason only of, or of the ordinary incidents of the flight of an aircraft over any property at a height above the ground which is reasonable having regard to wind, weather and all the circumstances of the case.”

Section 49(2): “Where loss or damage is caused to any person or property on land or water by a person
in or an article of person falling from an aircraft while in flight, taking off or landing, then without
prejudice to the case of contributory negligence, damages, in respect of the loss or damages shall be
recoverable without proof of negligence or intention”.

Note further that, it is actionable trespass where a crane when in operation swung over the roof of the plaintiff’s factory at a height of fifty feet. See Woolerton Ltd v. Costain (1979) 1 WLR 411 where the defendant’s signboard projected into airspace above the plaintiff’s shop . See Kelsen v. Imperial Tobacco Co. Ltd (1957) 2 Q.B pg 334.

Possession as a ground for an action of Tort of Trespass to Land

The term “possession” for our own purpose refers to a state of owning or having a thing in one’s hand or powers . We are concerned with de facto possession I.e actual possession.

Possession is seen as form of ownership conferring rights to the thing under possession. Therefore, the law protects even wrongful possession against all except one with the better title to the thing. See the case of Amakor v. Obiefuna Supra . In Owe v. Osinbanjo (1965) All NLR pg 72 at 76 , Coker JSC said as follows:

“Once the plaintiff can establish his possession, even if he be a trespasser, the defendant can only
justify his entry on the land by showing a better title”.

See the case of Adeshoye v. Shiwoniku (1952) 14 WACA pg 86. See also Oguehe v. Iliyasu (1971) NNLR pg 157. In that case, the plaintiff, a Native of Kwara State was an employee of the Kano State Ministry of Works. He was in possession of a plot of land in Kano State on which he constructed a house. The land was granted to him by the owner in breach of the Land Tenure Act 1962, Section 27 and 32 of which provided to the effect that Land may not be alienated to a “non native” without the consent of the Commissioner of Lands and that any such alienation without consent shall be null and void.

The defendant, suspecting that the plaintiff had used some Ministry of Works material and labour on the house, purported to act on behalf of the Ministry, caused a bulldozer operator to enter the plaintiff’s land and demolish the house. It was held that the plaintiff had a good cause of action to trespass because:

“… it is bare, de facto, physical possession or occupation which entitles a person to bring an action for
trespass”

Note that the burden is on the plaintiff to prove that he was in de facto possession of the land at the
relevant time. See Wuta- Ofei v. Danquah (1961) 3 All E.R.596.

Note further that where both the Plaintiff and defendant claim to be in possession of land, the Court will resolve the doubt in favour of the one who can prove title to the land I.e. the one who has “the right to possess”. See Efarrah v. Adekunle (1962) 5 ENLR 55 p. 57, Awoyoolu v. Aro (2006) 1 JNSC 147 at 170, Yussuf v. Abina (1968) 2 All NLR.

In Jones v. Chapman (1848) 154 E.R 777 at p.724, Maule J. observed that:

“If there are two persons in a field each asserting that the field is his, and each doing something in
assertion of the rights of possession, and if the question is, which of those two is in actual possession, I
answer, the person who has the title is in actual possession and the other is a trespasser”.

In Efana v. Adekunle Supra, Idigbe J. said:

“If there is a dispute as to which of two persons is in possession, the presumption of law is that the
person having title to the land is in possession”.

See Amayo v. Erinwingboro (2006) 5 JNSC pt 19, pg 421

It should be noted that if a plaintiff has a right to immediate possession of the land, he can, once he enters unto the land, sue for trespass committed by third parties between the date of accrual of his rights and his entry. Thus is often called Trespass by Relation.

For example, a lessor who has a right to reenter after the termination of the lease, may, after re entry, sue in respect of any trespass committed between the time the lease determined or expired and his re entry. See the case of Barnett v. Guildford (1855) 156 ER 728.

Note further that it is a defence to an action for trespass that the defendant has a right to possession of the land, or acted under authority of the person having such right ( jus tertii ). See Oguehe v. Iliyasu Supra . However, jus tertii will not avail a defendant against the plaintiff who is in de facto possession unless the defendant entered under the authority or as the agent of such third party (owner). See Lajide v. Oyelaran (1973) 3. WSCA 93 at 95.

Trespass ab initio

Where the defendant’s entry is by authority of law as opposed to the plaintiff’s authority, and the defendant subsequently abuses that right, then he becomes a trespasser ab initio (from moment of entry). See The Six Carpenters’ Case (1610) 77 ER 695.

In that case, the defendant entered a tavern, a public place by virtue of the nature of its business and signboard outside which is an invitation to the public to treat. They ate and drank and paid for the first service and after consuming the food and drink for the second service, they refused to pay and the proprietor sued to recover damages.

The court held that the carpenters, having entered the premises on invitation extended by the proprietor to the public were not trespassers from the beginning. The court held that:

“Where an entry, authority or licence is given to anyone in law and he abuses it, he shall be a trespasser ab initio; but not where the authority or license is given by the party.”

Note that, while the modern application now lies in the use of the Police Search Warrants, it has now been removed by cases such as Elias (1934) 2 KB 164 which held that:

“Partial abuse of authority does not rend everything done under it unlawful”.

In Chick Fashions West Wales Ltd v. Jones (1968) 1899, while searching the Plaintiff’s premises for the goods, the Police seized goods which they mistakenly thought to be stolen, the seizure was held to be lawful as Police entering premises with a warrant had authority to remove anything which they believe to have been stolen.

Remedies available in Trespass to Land

A plaintiff in trespass normally sues for Damages and injunction to restrain the trespasser. Damages and injunctions are judicial remedies in the Court of Law. (There are two types of Remedies: Judicial and Extra judicial).

The possessor of land may also avail himself of certain extrajudicial reliefs, recognized under the common law. These include: Forcible ejectment and distress damage feasant, which usually come in the nature of self help.

1. DAMAGES: Recall that trespass to land is actionable per se (need no proof). Where the plaintiff has suffered special damage by reason of the trespass, he has to specifically plead and prove such additional damage and it must be part of his or her pleadings.
   
2. INJUNCTIVE RELIEF (INJUNCTION): An Injunction is an equitable remedy which is not available as a matter of course. The court has to weigh the equity in the case to decide whether to exercise its discretion in favour of the plaintiff applicant or not. Where a plaintiff applies for an injunction, he must precisely spell out the area to be covered by the injunction sought. The injunction granted or sought may be for a temporary duration or perpetual.
   
3. FORCIBLE EJECTMENT: The possessor of land may use reasonable force to eject a trespasser who has entered the land forcibly or refused to leave when requested. What amounts to reasonable force depends on the circumstances of each case and the amount of force employed by the trespasser to gain his entrance. It is submitted that self help is a dangerous and inadvisable remedy due to its attendant disadvantages.
   
4. DISTRESS DAMAGE FEASANT: The occupier of land at common law has the right to detain trespassing animal as well as other chattels which did damage in the land. Note that, before resorting to this extra judicial remedy, the following conditions must be followed:

• The thing that caused the damage must be unattended when detained. For example, a cow which enters your land and eats your crops cannot be destrained if the driver is present.
• The destrainor must not sell the thing destrained, instead he must take proper care of the chattel/thing.
• There is is no retroactive power to destrain a trespassing chattel for damage done on the previous occasion.
• There is a destrainor has to release the chattel when its owner has paid proper compensation I.e to say compensation ends restraint. The self help of Distress Damage feasant is an alternative to an action for damages.
• Only the particular chattel which did the damage could be seized.

Note that Section 7(1) of the Animals Act (1971) has abolished the rights to seize any animal by way of distress damage feasant.

Defences to Trespass to Land

1. Licenses: A license is the consent which does not pass any interest in the property to which it relates but merely prevents an act which it is given from being unlawful. See Hill v. Tupper (1863) 159 ER pg. 51. An owner who permits another to enter into his land cannot sue that person for trespass. See Adebajo v. Brown (1990) 3 NWLR pt. 144 pg. 661.
   
2. Laches: This can be referred to as Slackness or unreasonable delay in asserting and enforcing a right which is lost after the time limited by law to enforce it.
   
   For a successful plea of laches, the plaintiff must have knowledge of all the facts, giving him a course of action. He must have delayed in instituting an action for so Long a period so that it can be inferred that he did not exercise his right.
   
   Note that where there is no statutory prescription, period to be considered long will depend on the circumstances of each case. In the case of Manko v. Bonso , it was held that a delay of twenty two years was too long. The plaintiffs knew about the voidable sale of a family land sold in 1885 and they got to know in 1914 and brought an action in 1936.
   
3. Acquiescence: This roughly indicates assent to or encouragement and permission on the part of the plaintiff. Acquiescence shares similar elements in common with laches but they are not similar. In the case of Duke of Leeds v. Earl of Amherst (1846) 2 Chancery 117 at 128. The true nature of acquiescence is given as follows:
   
   “If a party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection, while the act is in progress, he cannot after wards complain. That is the proper sense of the word.”
   
   Acquiescence shares the two elements of laches but it has four elements namely:
   
   A. A mistake in the part of the defendant that he is the owner.
   B. The expenditure of money by the defendant on the land to the knowledge of the plaintiff.
   C. The exercise of acts of ownership by the defendant to the knowledge of the plaintiff.
   D. Conducts of the plaintiff showing the abandonment of his rights.
   
4. Justification (By law): When justification is provided by law, acts which would otherwise be trespass are not trespass. For example, powers of the police under the Police Act or Evidence Act to enter into the premises to search them.
   
5. Necessity: The House of Lords in the case of Re. F (1990) 2 AC pg 1 74 identified three standard situations where the defence of necessity might apply:
   
   * Cases of public necessity. For example, the destruction of property to prevent the spread of fire.
   * Case of private necessity. In Cope v Sharpe (1912) 1 KB 496. X’s land caught fire, his servants attempted to put out the fire. Z’s gatekeeper set fire to land between the fire and some of Z’s nesting pheasants. In an action for trespass, Z’s gatekeeper was held not liable as there was a real and imminent danger and he had done what is reasonably necessary.
   
   An action taken as a matter of necessity to come to the aid of another person whose property or person is in imminent danger and it is not practicable to communicate with the assisted person. The action must be such as a reasonable person would take acting in the best interest of the assisted person.
   
   Note the necessity is a defence to trespass to land, it may not be a defence to another Tort such as
   negligence.
   
6. Jus Tertii: This is a claim by the trespasser that he has the authority of a third party who has a better title
   to enter the land.

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Reference:
Lecture(s) – Dr Alayinde | Faculty of Law, Obafemi Awolowo University, Ile-Ife.

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Contributor: Abass Olayinka

N.B. This article is particular to Nigeria.

Law of Tort

Law of tort deals with civil wrongs. The whole essence of the law of torts is founded in the law of negligence . A tort can therefore be referred to as “a civil wrong punishable by damages“. Tort is a civil wrong and a branch of civil law.

Salmond defines tort as:

“a civil wrong for which the remedy is a common law action for unliquidated damages and which is
not exclusively the breach of a contract or a breach of trust or other merely equitable obligation.”

On the other hand, Kodilinye & Aluko defined tort as:

“a civil wrong involving a breach of duty fixed by law, such duty being owed to persons generally and
its breach being redressable primarily in an action for damages.”

In criminal law, the plaintiff is always the state and the defendant, if found guilty of a particular crime, is punished by the state unlike in the law of torts which is civil in nature and is typically between private parties , in some instances however government can sue and be sued.

In law of torts the plaintiff is the victim of an alleged wrong and the unsuccessful defendant is either directed to pay damages to the plaintiff or to desist from the wrongful activity [ injunction] . Examples include intentional tort like battery, defamation, invasion of privacy and unintentional torts such as negligence.

The touchstone of tort liability is negligence; if the injured party can??? prove that the person believed to have caused the injury acted with negligence, at the very least tort law will compensate him. The Law of torts recognises intentional torts and strict liability which apply to defendants who engage in certain actions.

Strict liability can either be contractual or tortious. When contractual, the remedy is damages but when tortious, it is a crime.

In tort law, injury is defined broadly. Injury does not just mean a physical injury but such injury reflect any invasion of individual interest.

Functions of the Law of Tort

In addition to the primary task of tort law to define the circumstances in which a person whose interest has being injured or harmed may seek compensation tort actions can sometimes be used as an alternative to the law of contract (where a person has relied on a promise for example to do some form of work carefully) or to supplement the law of contract.

Tort law may also be used as a vehicle for determining rights. Disputed possession of land may be tested through an action for trespass. Misappropriation of chattels may be dealt with through the tort of conversion which is primarily concerned with questions of title, although the ultimate remedy is to compensate the owner for his loss. Important questions of civil liberty may be tested by an action for nominal damages. For example, the right to vote, trespass to person, trespass to land or trespass to chattel.

Relationship Between Law of Tort and other Courses

1. Tort and Crime:
   There is some overlap between tort and crime. For example, in most common law countries, an assault is both a crime and a tort (a form of trespass to the person). A tort allows the victim to obtain a remedy that serves their own purposes . For example, payment of damages to a person injured in a car accident or the obtaining of an injunctive relief to stop a person interfering with their business.
   
   Criminal actions on the other hand are pursued not to obtain a remedy to assist the person although quite often, criminal courts do have power to grant such remedies but they would rather remove their liberty on the state’s behalf. That explains why incarceration is usually available as a penalty for serious crimes but not in tort. The more the severity of the penalty in criminal law means that it requires a higher burden of proof than in tort law.
   
2. Torts and Insurance:
   Misfortune happens and when it does, its victims incur costs. Those costs can remain the burden of the victim or they can be shifted to others. Sometimes, the costs are borne by everyone within a particular group or a political community. At other times, the costs are borne by particular individuals namely those who are responsible for having caused them. Tort law and Insurance are thus connected in the following ways:
   
   Tort Law establishes conditions under which victims can shift at least some of the cost they incur to others . All individuals realise that they may be subject to a judgement against them in Tort and so many buy third party insurance to protect them from bearing the full cost of those judgements. In some jurisdictions, third party insurance is mandatory.
   
   All individuals are likewise aware that they may be victims of another person’s actions and may not be able to secure a favorable judgement against their injurers, or they may not deem it worth the effort to pursue interest through the court, so many of them buy first party insurance to guard against some of the costs they should otherwise have to shoulder completely. It must however be noted that tort law provides an avenue of redress, not a guarantee of recovery .
   
   The victim must determine whether pursuing a remedy through Torts is worth the effort and the cost. Where the victim chooses the form of redress, provided by Tort Law, he is given the opportunity to shift his losses to another provided the conditions the law set out for doing so have been met . These conditions set out is what we call liability rules.
   
3. Tort law and contract:
   Tortious duties exist by virtue of the law itself and are not dependent upon the agreement or consent of the persons subjected to them . Tortious liabilities could therefore be distinguished from contractual liabilities and from liabilities on bailment, neither of which can exist independently of the parties or at least the defendant’s agreement or consent.
   
   The interests and liabilities in contract are restricted to prior agreements between the parties and the damages are liquidated . Whereas interests and liabilities in tort are based on the common law and related statutory provisions and the damages are much more responsive to the injury or harm suffered in a particular case.

Categories or Classification of Torts

Tort law may be classified in a number of ways:

1. Negligence tort.
2. Intentional tort.
3. Statutory tort.
4. Economic tort.

They can also be classified according to the type of rights or interest they aim to protect or preserve.
Concerning the interests protected or defended, tort law may be classified as:

1. Tort protecting personal interests e.g trespass to land or person.
2. Tort protecting integrity of the judicial process e.g. malicious prosecution.
3. Tort protecting personal reputation e.g defamation
4. Tort protecting economic interests such as injurious falsehood, deceit
5. Tort protecting relationship and property interests.
6. Tort protecting other interests.

1. Negligence torts:
   The dominant action in tort is negligence. It is so because it is not only a tort in its own right, it is also a way by which many torts may be committed. Negligence is a tort which depends on the existence of a breach of duty of care owed by one person to another. A popular case in negligence is Donoghue v Stevenson [1932] AC 562
   
2. Intentional Torts:
   Intentional Torts are any intentional acts that are reasonably foreseeable to cause harm to an individual and the doing of that intentional act. Intentional Torts have several subcategories including Torts against the person (assault and battery), false imprisonment, intentional infliction of emotional distress, nuisance and fraud.
   
3. Statutory Tort:
   A statutory Tort is like any other in that it imposes duties on private or public parties.
   
   However, they are created by the legislature and not the courts . Example is the law of consumer protection with product liability in the European Union which informs making defective products that injure or harm people, paying the damages resulting thereof. (Strict liability is statutory. See Grant v. Australian Knitting Mills [ 1935] All ER Rep 209.)
   
4. Economic Tort:
   (Designed to help people in business in order not to run out of business.)
   Economic Torts protect people from interference with their trade or business. Torts under this are passing off and Deceit.

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Reference:
Lecture – Dr Adeleke, Faculty of Law, Obafemi Awolowo University, Ile-Ife.

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Contributor: Abass Olayinka

N.B. This article is particular to Nigeria.

Strict Liability

Strict liability makes a person responsible for the loss or damages caused by his or her own acts and omission regardless of culpability which would normally be expressed through a Mens rea requirement. Strict liability is important in tort, corporation law and criminal law.

Strict liability is the legal responsibility for damages or injury even if the person found liable was not at fault or negligent. In addition, certain activities may be conducted by persons only if they are willing to insure others from the harm that results from the risk of such activity.

In tort law, strict liability has traditionally been applied for damages caused to animals. Because animals are not governed by a conscience and possess great capacity to do mischief if not restrained, thus those who keep animals have a duty to restrain them. In general rule, keeper of animals are liable for damages resulting from trespass of their animals.

THE RULE IN RYLAND V. FLETCHER

The rule in this case is the most often quoted example of strict liability. Basically, it stated that an occupier of a land who brings upon it anything likely to do damage if it escapes and keeps it on the land, will be liable for any damage caused by an escape.

Ryland v. Fletcher, is a landmark English law tort case. It applies the doctrine of strict liability for inherently dangerous activities. On appeal by Ryland, the house of lords confirmed the previous judgement but restricted the rule to a NON-NATURAL USE OF THE LAND. It established a rule arguably distinct from the tort of nuisance. The so-called Ryland’s rule has in Australia become absorbed into the ordinary law of negligence, with all the requirements of duty of care, test of reasonableness of care and proximity.

The dispute in Ryland v. Fletcher concerned then escape of water onto the neighbor’s land. Then application of the Ryland rule has been an important step in the development of legal policy relating to modern industry, risk allocation and negligence. The rule is strict in the sense that it relives the claimant of the burden of showing fault.

SCOPE OF THE RULE

A. Things within the rule which according to Blackburn j. includes “anything likely to do mischief if it escapes
B. Bringing on the land and accumulation
C. Escape
D. Non-natural users

APPLICATION OF THE RULE IN NIGERIA

The hazards of pollution associated with the oil industry and rapid growth of manufacturing activities in Nigeria, since the late 1960 would seem to have ensured an important role for the Ryland v. fletcher principle, surprisingly, there are few cases in which the principle has been invoked. The most significant which is Umudje v. Shell B.P petroleum co.

DEFENCES

These defenses are briefly as follows:

1. CONSENT OF THE PLAINTIFF: where the plaintiff has expressly or impliedly consented to the source of danger, the defendant is not liable unless he has been negligent. As in Carstairs v. Taylor. This attracts the application of the maxim VOLENTI NON FIT INJURIA. The defense is most often applied in the cases where a tenant in a block of flat suffers damages as result of water escaping from an upper floor. The rationale behind this rule is that the water had been brought to the building for the mutual benefit of both parties and therefore, there is no sufficient reason why the risk of accident should lie on the upper rather than the lower.
   –
2. DEFAULT OF THE PLAINITFF: It was suggested in Ryland v. Fletcher, that there would be no liability if the escape was as a result of the plaintiff’s own default. Thus, in a case where the worked a mine under the defendant’s canal, indifferent to the risk of flooding, the defendant was no liable for the escape of the water from the canal. Alternatively, where the plaintiff’s attitude amounts to negligence, the statutory apportionment rule will apply.
   –
3. ACT OF GOD: where the escape is the result of the operation of natural forces free from human intervention, the defense of act of god may be available. Thus, an escape caused by an extra ordinary violent storm, wind or tide may not be actionable. However, the court has kept this defense within a narrow confine and there appears to be only one reported case in which it has been allowed. Thus, in the case of Nicholas v. Marshland, the defendant had for many years been in possession of some artificial pool formed by damming a natural stream. An extra ordinary rain broke down the embankment and swept away some bridges of the plaintiff. It was held that the defendant was not liable for the damages because there has been no negligence on his part.
   –
4. STATUTORY AUTHORITY: sometimes public authorities charged within performing a particular service are exempted from liability provided they have not been negligent.
   –
5. ACTS OF STRANGER: it is a defense to liability under Ryland v. Fletcher that the escape complained of was caused by the deliberate act of a stranger which could not reasonably have been anticipated by the defendant. For instance: in Mandray v. Texacoine , an oil company was not liable for an escape of oil and consequent damage to the crops of neighboring landowners which was caused by an unknown trespasser drilling holes into the pipes. In Box v. Jubb, the owner of a reservoir was not liable for the flooding a neighboring land cause by the act of a third party in emptying his reservoir into theirs. For the defense to lie, the act must be deliberate and conscious, however, this has been criticized that the basis of the defense is the absence of any control by the defendant over the unforeseen acts of the stranger.

DAMAGES

The rule in Ryland v. fletcher is not a tort rationale per se and so damages must be proved. As to what type of injury are compensable the harm primarily protected by the tort is damage to land, building and thereon. The plaintiff may also recover for harm to chattel as seen in Jones v. Festiniog.

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Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

N.B. This article is particular to Nigeria.

Malicious Prosecution

The tort of malicious prosecution is committed where the defendant maliciously and without probable cause, initiates against the plaintiff a criminal prosecution which terminates in the plaintiff’s favor and which results in damage to the plaintiff’s reputation.

According to the OXFORD LEARNED DICTIONARY, malicious refers to

“Pertaining to or as a result of malice or spite”

In the case of Ogbonna V. Ogbonna (2014) LPELR CA 200 “malicious prosecution is a tort which enables a person who is a subject of groundless and unjustified proceeding to seek claims for damages”

In line with this, malicious prosecution is when the defendant without reasonable and probable cause prosecutes the plaintiff and then case has ended in the plaintiff’s favor with damages to the person and his reputation. Although prosecution has to do with crime and criminal act, malicious prosecution is civil in nature.

In this tort, the law seeks to hold a balance between two opposing interest of social policy namely

1. The interest of safeguarding persons from being harassed by unjustifiable litigation.
2. The interest I encouraging citizens to assist in law enforcement by bringing offenders to justice.

ESSENTIALS OF MALICIOUS PROSECUTION

In order to succeed in a nan action for malicious prosecution, the plaintiff must prove:

1. That the defendant instituted a prosecution against him
2. That the prosecution ended in the plaintiff’s favor
3. That the defendant has no reasonable and probable cause for prosecution
4. That the defendant acted with malice
5. That the plaintiff suffered damages to his person, property and reputation.

Failure to establish any one or more of these requirements will result in the plaintiff losing his action for malicious prosecution.

Each of these requirements must now be considered in turns –

1. INSTITUTION OF PROSECUTION: The plaintiff must show first that the defendant instituted a prosecution against him. As Lewis JSC stated in the supreme court case of Mandilas & karaberis ltd V. Apena:
   “in our view it is clear from Danby v. Beardsley that to succeed the plaintiff must show that it was the defendant who was actively instrumental in setting the laws in motion against the plaintiff”.
   
   The following principles as to what constitutes setting the law in motion has been established by the authorities:
   i. It is not necessary that the defendant should have actually conducted the prosecution. This is illustrated in Malz v. Rosen
   ii. At one time it was thought that the defendant would not be liable unless the prosecution be said to have actually commenced. This was the courts holding in Gregory v. derby
   iii. Where the defendant merely informs the police of a certain fact which incriminates the plaintiff and the police as result decides to prosecutes, the defendant would not be regarded as having instituted a proceeding as seen in Fitzjohn v. Mackinder
   
2. TERMINATION OF PROSECUTION IN PLAINTIFF’S FAVOUR: The second requirement for a successful action in malicious prosecution is that then prosecution of which the plaintiff complains ended in his favor. This requirement is satisfied:
   i. If the plaintiff is acquitted of the charge but convicted of a lesser one as evident in BOALER V. HOLDER
   ii. If the plaintiff was convicted in a lower court but his conviction was quashed on appeal because of some irregularities
   iii. If the plaintiff was acquitted on a technicality such as indictment
   
3. ABSENCE OF REASONABLE AND PROBABLE CAUSE: the third requirement is perhaps the hardest to satisfy, in the first place, it involves proof of a negative by the plaintiff which is a notoriously difficult task. The concept still remains very vague and the best known definition is that of Hawkings .J. in Hicks v. Faulkner where he stated that it is “ an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds of the existence of a state of circumstances. Other principles include:
   
   i. The overall question is a double one both objective and subjective whether a reasonable man would have believed that the plaintiff was guilty of the crime. (objective test) and whether the defendant himself did honestly believe the plaintiff was guilty.
   ii. Where the defendant acts under a mistaken impression as to the true facts. He may be judged on those mistaken facts.
   iii. Reliance on facts must be based on facts known to the defendant at the time he initiated the prosecution.
   iv. Where the defendant who believes that the plaintiff is guilty and lays the facts in full either before a counsel to the police, and he is advised that prosecution is justified.
   
4. MALICE: malice in tort is wider than ill-will or spite. It includes any improper purpose or any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice. If there is no spite or ill-will and the purpose is not to bring the person to justice, then it is malicious.
   
5. DAMAGES: finally, the plaintiff must in all cases show that the prosecution brought against him has brought damage to his
   i. Fame
   ii. Person
   iii. Property

In order to show damage to his fame, the plaintiff must satisfy the court that the charge brought against him was “necessary and naturally” defamatory. Thus, damage to fame was established in Rayson v. Smith. There was no damage to fame where a charge of extortion was brought against a paramount chief in Yeboah v. Boateng.

Damage to person will be established where the prosecution caused the plaintiff to be imprisoned or corporally punished. As regards damage to property, the cost incurred by the plaintiff in defending the charge will be sufficient to ground the action for malicious prosecution, unless then court trying then case awards him allowances equivalent to the cost he incurred as illustrated in Berry v. British transport commission.

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Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

N.B. This article is particular to Nigeria.

Deceit

We have seen that the rule in Hedley bryne & co V. Heller & partner Ltd, a person who makes a careless misstatement to another may be liable to that other in negligence or loss suffered as a result of reliance upon the misstatement. The tort of deceit is also concerned with the loss sustained through reliance upon misstatement but un this tort it is not sufficient to show that the defendant’s statement either knowing it to be false or being indifferent to its truth or falsity as illustrated in Derry V. Peek.

The essence of deceit is fraud and in law of contract it is known as Fraudulent misrepresentation. Unlike liability under the Hedley bryne’s principle, which is of comparatively recent origin, the tort of deceit has been established since 1789 in parsley V. Freeman and its principles are comparatively well settled & clearly drawn. The representation can be an act, a conduct or an oral statement.

ELEMENTS OF DECEIT

1. That the defendant made a false representation of facts by words or conduct
2. That the plaintiff relied on such false representation
3. That the defendant intended that the representation be acted upon by the plaintiff
4. That the plaintiff did rely on the statement & suffered damages as a result.

FALSE REPRESENTATION OF FACT

There are 3 aspects to this requirement, they include:
i. The false statement may be made by words, spoken & written, however, any conduct designed to deceive another to believe that a certain fact exists is equivalent in law to a statement that such fact actually exists.

A Nigerian case is that of James V. Mid-motors (Nig) co Ltd.

ii. Generally, the mere non-disclosure if the truth us not actionable deceit. In other words, silence does not normally constitute fraud. This principle is most seen clearly in the context of sales of goods. This is expressed in the Latin Maxim “Caveat emptor” which implies, Let the buyer be aware.

However, silence will constitute deceit in the following circumstances
A. Where it distorts a positive representation
B. Where there is active concealment of fact
C. Where a duty of disclosure is imposed by statute.

INTENTION THAT THE STATEMENT SHOULD BE RELIED UPON

The plaintiff in action for deceit must show that the defendant intended that the plaintiff relied on the defendant statement. It is not sufficient to show merely that the defendant should have realized that it was likely that the plaintiff would rely on the statement. It is also not vital that the statement be addressed directly to the plaintiff. It is sufficient that it was addressed to a third party with intent that it be communicated to the plaintiff. This is evident in Langridge V. Levy.

RELIANCE BY THE PLAINTIFF

The plaintiff must show that the defendants false representation caused him to act to his detriment as seen in Smith V. Chadwick. If the loss suffered by the plaintiff was due to some cause other than reliance upon the defendant’s misstatement, then the defendant will not be liable in deceit.

DAMAGES SUFFERED

Deceit is not actionable per se and so the plaintiff must prove he has suffered some actual damages. In most cases the damage will consist in financial loss bit there is nothing to prevent recovery for damages to property as evident in Mullet V. Mason.

DEFENSE

1. Where the party that made representation made it in good faith & honest belief in its truth.
2. Improper investigation by the independent contractor
3. The agent doing an act outside the scope of his employment

REMEDIES

1. Awards of damages
2. Restitution

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Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

N.B. This article is particular to Nigeria.

Conversion

Conversion may be defined as an intentional dealing with or exercise of control over a chattel which seriously interferes with the plaintiff’s right of possession of such chattel.

Conversion is similar to trespass in that it primarily protects possession rather than ownership of goods. It differs from trespass in that:

1. In conversion, the interference must be intentional, whereas in trespass, it must be intentional or negligent.
2. Unlike in trespass, conversion is not for the plaintiff to have actual possession, it is sufficient he had an imminent right to possession
3. It is not conversion merely to move chattel from one place to another but such act would amount to trespass.

INTENTIONAL CONDUCT

A defendant will be liable in conversion only where his conduct in relation to the plaintiff’s goods was intentional. An interference resulting from mere careless conduct is not actionable per se in conversion. To amount to conversion, the intent of the defendant must be to deal with the plaintiff’s goods by exercising Dominion over them on his own behalf or non-behalf of someone other than the plaintiff.

If such intent is present and there is in fact an interference with the plaintiff right over the goods, the defendant would not be liable in conversion.

ACTS OF CONVERSION

1. Conversion by taking: it is conversion to take goods without lawful justification out of the possession of the person entitled to them with the intention of exercising a permanent or temporary definition over them. It is essential however that the defendant should have intended to exercise Dominion over the chattel. If he merely removed the chattel from one place to another without intending to assume possession, he will be liable in trespass but not in conversion. An example is seen in the Nigerian case of Davies V. Lagos city council.
2. Conversion by destruction: intentionally, to destroy or consume a plaintiff’s chattel constitutes conversion. Merely to damage the chattel of another is not conversion but trespass. In each case it is a question of degree as to whether or not the damage is so great as to amount to destruction. It is also conversion to alter the identity of a chattel.
3. Conversion by using: if the defendant uses the plaintiff’s chattel as if it were his own, his act is inconsistent with the right of the plaintiff & he will be liable in conversion. Where the defendant finds the plaintiff chattel, he does not commit conversion merely by keeping it in his possession, but he would be liable if he uses it. This is seen in Petre V. Heneage
4. Conversion by detention: where the defendant is in possession of the plaintiff’s chattel without authority & refuses to surrender it to the plaintiff when asked to do so, he commits conversion.

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Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)