Basics of Law of Tort

DEFAMATION

Under law of tort, defamation is a law that protects a person’s integrity and reputation, defamation while being a tort, it can also be criminal in nature.

Defamation Consists of Libel and Slander, however if a person does not have a good reputation then there is nothing for the law to protect as the case maybe. (See section 252, 365, 373-381 of the Criminal Code).

TYPES OF DEFAMATION.

1. Libel

2. Slander

LIBEL; Can be defined as written or documented defamation either on News Paper or in any written form, nowadays it can also be electronic, e.g written on websites, online forums, social media platforms, and other written forms. Most important to understand is that Libel is in written form, it does not matter where it is written, as far as the defamation is written, then it is a Libel. However, before a libel defamation can be established, it must be published.

LIBEL is more actionable upon more commission without the necessity of proving damage. As a general rule, slander is not actionable per se, except in the following circumstances;

· Implying that a person has committed criminal offence

· Saying that a person has infectious disease

· Accusing a woman or a girl of unchastity. See Kerr v.s Kennedy.

· Implying that a person is incompetent in his profession.

SLANDER; It is a direct impression of defamation communicated orally that injures the reputation or integrity of the plaintiff. However, for a Slander Defamation to be established it must be communicated to the Plaintiff (Victim).

Moreover, Before Both Libel and slander be established there are certain elements which are;

1. It must be Published (Heard by a third party other than the plaintiff)

2. It must contain words which may injure the plaintiff’s image, integrity or reputation

3. (For a Slander) It must be communicated to the Victim (Plaintiff).

Where a person is making the defamation out of justifiable grounds which appears to be truth or for the interest of the general public well-being or Justifiable which shows that the defendant has no reputation then it will not constitute a defamation. See the case of Memanus v.s Victoria Beca 2002. Also the case of Slipper V.S BBC

DEFENCES AVAILABLE FOR DEFAMATION.

1. Truth; In any defamation, the defendant can only be held liable if the statement involved was false. A true statement does not meet the legal requirements for a defamation.

2. Absolute Privileges; absolute privileges apply to the following circomestances;

· Judicial Proceedings

· Legislative proceedings

· Some executive statements and publications

· Publications between spouses

· Publications required by law.

3. Conditional/Qualified Privileges; These Privileges do not arise as a result of the person making the communication, but rather arise from particular occasion during which the statement was made. Conditional Statements applies to the following statements.

a) A statement that is made for the protection of the publisher’s interest.

b) A statement that is made for protection f common interest.

c) A statement that is made for the interest of third person.

d) A statement that is made to ensure the well-being of a family member.

See the case of Reynolds V.s Times News Papers Limited 2001.

MALICIOUS PROSECUTION

Malicious prosecution consists of insulting unsuccessful criminal proceedings maliciously and without reasonable or probable cause. When malicious prosecution through a criminal proceeding causes a damage to the party prosecuted, it is a tort which he can bring an action against.

ELEMENTS OF MALICIOUS PROSECUTION.

1. Prosecution by a defendant.

2. Absence of reasonable and probable causes

3. Malice- It must be Proved that the defendant acted maliciously in prosecuting the plaintiff.

4. Termination of proceedings in favor of the plaintiff

5. Damage; It has also to be proved that the plaintiff suffered damage resulting from the prosecution. See Alhaji Isa v.s Alhaji Jibril Garba.

TRESPASS

Trespass in law f tort is the voluntary, intentional, negligent, direct, physical interference with plaintiff’s exclusive possession.

1. Trespass to person; e.g assault and battery, each gives a right of action in itself.

2. Trespass to goods; actionable per se

3. Trespass to land; Trespassing to someone’s land such as by more entry or stay in the land or removing anything from the land without any authority or consented authority from the land owner constitute trespass, even if no specific damage is suffered.

DEFENSES TO TRESPASS

1. DEFENSES TO TRESPASS TO LAND;

• Entry by grant/Leave

• Re-entry by the property owner

• Entry to bring back cattle

• Entry for abetment of nuisance

• Execution of Legal Process

2. DEFENSES TO TRESPASS TO PERSON

• Self-defense or Justification

• Defense of property

• Consent of the plaintiff express or implied is a complete defense

• Medical treatment

DECEIT

Is a tort wrong arising out of a false statement made by one person or entry knowing or recklessly with the intention that if it should be acted upon by another person will result in damage suffered by the plaintiff. It is also known as fraudulent misrepresentation in contract.

ELEMENTS OF DECEIT

Before a deceit constitute a tort there are certain elements which must be included in the deceit. Those elements are spelled out here seriatim;

a) False

b) Reliance

c) Damage must be suffered by the person who relied upon such false statement, (Misstatement or False representation i.e in Contract)

d) Representation.

PASSING OFF

Passing off is a common law origin in common law countries such as U.A, Australia, the tort is a law to enforce and protect the good will of a trader from misrepresentation as well as the consumer from being misled. In the case of RECCKIT & COLMAN PRODUCT COMPANY LTD V.S BURDEN L.T.D it was established that the elements to be considered are;

1. Goods which are owned by a trader

2. Misrepresentator

3. Damage to the good will.

THE RULES IN RYLANDS V.S FLETCHER

1. STRICT LIABILITY; As of general rule, the principle of strict liability means that a person (defendant) is liable for a tort committed by his employee even though there is no tort or damage committed from part and whether or not damage is done by the plaintiff.

Examples of strict liability include;

1. Product liability or consumer protection.

2. Liability for animals

3. The rule in Ryland Vs Fletcher (1868) LR3 HL330 37

PRODUCT LIABILITY; Product liability is the liability of a producer , retailer, importer or supplier for any loss or injury caused by his product whether due to some defects or some reasons. See Gammon Vs AG Hong Kong

2. STRICT LIABILITY (LIABILITY FOR ANIMALS); The general rule is that dangerous animals should not be brought into contact with persons however, liability and damage will be suffered by the owner of such animals if the animals are domestic or dangerous in nature (Scienter Action), if the owner of the animals had prior knowledge of the animal’s aggressive conduct.

However, scienter action (dangerous animals) are classified into two.

1. Animals ferae Naturae

2. Animals Menutae Naturae

Animals Ferae Naturae; Are animals which are naturally violent, they can cause damage naturally e.g lion

Animals Mensutae Naturae; These are animals which are not naturally violent but resulting from circumstances they happen to cause damage. A good example is Dog.

DAMAGES

This is a remedy under law of tort which mean to compensate the plaintiff for the harm he suffered as a result of the actions or conduct of the defendant.

TRYPES OF DAMAGES;

1. Compensatory damages

2. Nominal damages

3. Exemplary damages

4. General and special damages

5. Contemptuous damages

6. Aggravated Damages

COMPENSATORY DAMAGES; This is a normal kind of damage awarded purposely to compensate the injury te victim had suffered.

NOMINAL DAMAGES; Is a damage when the plaintiff establishes a violation of his right by the defendant and is obtained actionable per se, such as trespass and libel where the plaintiff can show no actual damage. See Okafor v.s Okitakpae.

EXEMPLARY DAMAGES; This type of damage is awarded where a party to the suit can show or establish by evidence that the injury or loss he has suffered due to the malicious act of the party against which whom he is claiming the exemplary damages.

AGGRIVATED DAMAGES; This is awarded by motive and conduct such as to aggravate the injury to the plaintiff, the purpose is to compensate the plaintiff from the injury he ha suffered from his feelings, dignity.

CONTEMPTOUS DAMAGES; These types of damages may be awarded where the plaintiff establishes his right but in a court. The action should never have been brought.

GENERAL DAMGES; General damages is such damage as the law have presumed to have suffered resulting from the defendant’s conduct. E.g damage in cases of libel. A special damage is the one which the law does not presumed and which must be proved.

DEFENSES OF NEGLIGENCE

As we already understood the meaning of negligence, there is no point in going back to definition, here seriatim, we discuss the defenses available to Negligence;

1. Contributory negligence; that the plaintiff contributed, aided or abetted the negligence which constituted his liability.

2. VOLENTI NON FIT INJURIA; A legal maxim which means if a person (Plaintiff) consented in the harm, the defendant will not be held liable.

ENTICEMENT OR HARBORING; The tort enticement or harboring are old common law torts which protects the matrimonial right of married persons, for instance the right of one spouse not to be denied the consent of the other spouse by a third party.

However, for plaintiff to prove that there is enticement or harboring, he must;

1. Prove that there is existing marriage between him and the spouse. See Newton v.s Hady 1970.

2. The plaintiff must prove that the defendant procured the use of the plaintiff spouse without lawful or justified reason to drag her out of her matrimonial home.

HARBORING;

It is the art of giving shelter to an errant wife, see Spancer v.s Elph (1961). However, the defense to harboring is medical treatment. See Spancer V.s Rely.