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Historical development of the law of torts in Nigeria

  • John Wigmore once said that ‘every institute and principle of law has a philosophy – as every object in the Sun has its attendant inseparable shadow.” We cannot possibly talk about the law generally without discussing the law of torts.

    The law of torts is usually viewed as a law of collision, which could occur in the literal or technical sense, but in whichever case, this ‘collision’ is used, it boils down to the fact that for torts to occur there must be a clash of interest whether it regards physical things or not.

    Meaning of torts

    Over the years, attempts have been made by numerous academics to defined the law of torts, but looking at all the definitions offered by different people, we haven’t been able to find a satisfactory explanation that encompasses everything that is said to constitute torts. Below are numerous attempts to define torts.

    A tort is a private act or conduct that causes harm to other people or their properties. Salmond defines the law of torts as “a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively for the breach of contract or the breach of trust or merely equitable obligation.”

    Winfield, however, puts the notion of duty at the forefront and defined torts as “a tortious liability that arises out of breach of a duty primarily fixed by law; this duty is towards a person generally and its breach is redressable by the action of unliquidated damages .”

    Kodilinye defines the law of torts as “a civil wrong involving a breach of duty primarily fixed by law, such duty being owed to persons generally and its breach being redressable primarily by an action for damages.

    Keeton gave a further explanation of the law of torts thus “in the first place, torts is a field which pervades the entire law and is so interlocked at every point with property, contract and other acceptable classifications, that as a student of law discovers, the categories are quite arbitrary. In the second there is a central theme running through the cases of what are called torts, which although difficult to put into words, does distinguish them from other types of cases.” In order words, the law of tort runs through the whole of the law and that contributes to its difficulty in finding a single definition.

    Also Kenny said “ to ask concerning any occurrence, is this a crime or a tort? is to borrow Sir James Stephen’s apt illustration - no wiser than it would be to ask concerning a man – is he, father or son? For he may well be both.” This is to show that an act can be both a crime and a tort at the same time. That means a person can be liable under both civil and criminal law and even though torts is a civil law, some acts constituting torts has criminal consequences.

    Although, the definitions of the law of torts differs we get the general overview of the law of torts which is a civil breach of any duty imposed by law and which attracts certain remedies to the person whose right has been breached.

    All definitions have three common elements namely:

    • An act or omission in violation of law
    • Legal injury or legal damage
    • Legal remedy by way of unliquidated damage

    Related article: The law of passing off and its application in Nigeria

    In the case of Donoghue v. Stephenson the house of lords established that under some circumstances, one can owe a duty to another even with no existing contract between the two. For when one is near another, he has a duty not to cause any personal injury to a person or his property and if he does cause an injury he will be held liable.

    In Glen Gelato Ltd v. Richcliff Group Ltd, It was held that an agent making inquiries on behalf of the principal is not personally liable for negligence in respect of accurate statement unless he assumed direct responsibility.

    In the case of Home Office v. Dorset Yatch Co Ltd, Lord Ried established that in determining whether or not a duty of care of particular scope was incumbent on a defendant it is necessary to take into consideration whether it is just or reasonable and reasonable as it ought to be.

    In the law of torts motive and malice play a minor role as an act that does not inflict a legal injury and not give rise to tortious liability, except in cases where malice is an essential ingredient. A tort under common law is subjected to remedies under common law and a tort under equity will have remedies under equity, and it should be known that equity opens doors to defences not necessarily available at common law.

    Background of the law of torts in Nigeria

    Law of torts found its way into Nigeria after English law was received in the country. The English law was made up of three different laws namely the common law, the law of equity and the statutes of general application.

    Later all statutes of general application made after January 1900 was made to be inapplicable in Nigeria, other common laws and the law of equity not affected by the cut of date were applicable so long as it’s not in conflict with any Nigerian statute or case law and the jurisdiction of the relevant court allows it to apply an English law.

    This law allowed the legislation at all levels, ranging from federal to local councils to take the responsibility of enacting legislations to meet the needs of the country. Many statutes were made as a result of this with some being extensions or ‘mutati mutandis’ of the English laws; some of these laws include ‘Weights and Measures Act,’ ‘Fatal Accidents Law,’ ‘Consumer Protection Council Act,’ ‘Defamation Law’ etc. This has led to good reforms made in some of our laws , for us and by us.

    Forms of torts

    There are four main elements in relation to torts and they are: duty, breach of duty, causation and injury. This elements combined are what leads to the commission of a tort. tort itself however, is divided into three:

    (1) Intentional torts
    (2) Negligence
    (3) Strict liability

    Intentional torts

    An intentional tort is said to be a civil wrong that occurs when a person does intentional conduct that results in damage to another person. An example of an intentional tort is the tort of assault, the tort of battery, the tort of false imprisonment etc.

    When a defendant is accused of an intentional tort, the burden of proof is on him to identify any justification that had led this action in order to absolve himself of liability. After he had provided proof, the court will then determine if he could be absolved from liability, whether there was consent between the parties, whether the defendant was defending himself etc. if all the evidence is favourable to the defendant, he will be said not to have committed a tortious act.

    Negligence

    Negligence is a careless conduct by one person that eventually led to an injury in another person. In some instances, liability can arise even when there is no intention to cause harm or be negligent. There is a specific standard of conduct that people are expected to follow which seeks to reduce the risk of harming others. Negligence can only be claimed by the plaintiff who believes that his interest has been tampered with.

    The plaintiff must first prove his injuries, prove that it was caused by an act of the defendant, and prove that the defendant caused that negligently. However, there is a statute of limitation in negligent cases, but there are also some rules such as contributory negligence which may excuse a plaintiff from the statutes of limitation.

    Contributory negligence is a great defence in negligence cases which sought to prove that the plaintiff has a great fault in his injury. In that case, both parties are said to be guilty of negligence and the plaintiff will not be awarded any damages. There is something called ‘a last chance rule’ which is an exception to contributory negligence as that shows that the defendant, despite the negligence of the plaintiff had a chance to avoid the injury, but he didn’t.

    Negligence can also be imputed in cases of vicarious liability where a person may be vicariously held accountable for the actions of another person due to the legal relationship between the person and the one that committed the crime.

    Strict liability

    Strict liability means that when someone causes harm to another, it is no defence that no harm was intended or that the defendant had exercised due care not to harm the plaintiff. For example, if someone stores harmful gas is his home and an accident happens and it harms his neighbours, he will be held strictly liable.

    In this case, it only matters that an action was done and an injury was caused some areas in safety law have come to the forefront of strict liability, for instance consumers must prove injuries caused by a producers product defects and that will help them get an appropriate court judgment.

    Apart from these three broad types of torts, there are other forms of torts that falls under these categories and they include misrepresentation and non-disclosure, nuisance, defamation, libel, trespass, domestic relations, survival or wrongful death etc.

    Application of the law of torts in Nigeria

    The law of torts in Nigeria is one that is continuously growing every day. The sources of the Nigerian law of torts are the case laws, the common law and the statutes.

    In Nigeria the judgment of superior courts of record is binding on lower courts, that means the judgment made in a supreme court is binding on the court of appeal and other courts. Therefore, if a superior court makes judgments regarding the law of torts that judgment made becomes law in guiding similar cases in Nigeria.

    In the case of First Bank Nigeria PLC v. Mrs Dibo Aboko the torts of defamation was the issue in this particular trial. The essential elements of defamation were established and the conditions guiding this were proved.

    However, it is said that it’s only in the question of damages have judges in Nigeria shown conspicuous signs of independence. Therefore, the Nigerian law of torts is seen as identical as that of England except where it has been modified by statute.

    Changes relating to apportionment of damages in contributory negligence cases have been adopted all over the country. However, in the northern part of the country the doctrine of common employment is still in force and so far only Lagos state has any legislation based on occupier’s liability from the Occupiers Liability Act of 1957.

    In the case of Ajegbuv v. Etilk an action of professional negligence was proved against a doctor in Nigeria. In the case of University of Nsukka v. Edward Turner and sons it was held obiter by the learned judge that where the prospect of physical injury is absent, the duty to exercise skill is only contractual.
    The law of torts is being applied in Nigeria, even though some torts like private nuisance have limited application in Nigeria, the law of torts is still an important law in Nigeria and it is still being reformed as time goes by.

    In conclusion, the law of torts aims to prohibit a person from doing wrong to another person. And when a tort is committed, the law provides remedies for it. The law of torts has its origins from English law but it still has application in Nigeria. There are three basic forms of torts which are intentional, torts, negligence and strict liability. Nigerian cases and statutes have shown that the law of torts is still being applied throughout the country.

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