Transfer of Title (Commercial Law) NG

N.B. This article is particular to Nigeria.

Transfer of Title

Want to learn about transfer of title in commercial law? Continue reading below.

The effect of a contract of sale as regards transfer of title may be broadly divide into three main groups:

  1. The seller would be transferring a valid title
  2. If the property in the goods is not transferred immediately, it would be transferred at some stage of the contract
  3. The person on whom the risk of loss is with is known at all times and the effect on both parties

THE BASIC RULE

The general rule is that a person cannot transfer a better title than he has himself. In simple language, you cannot transfer what you do not have. This principle has been summed up in the Latin maxim “nemo dat quod non habet”. However, the rule is that a buyer cannot acquire a better title than that which the seller has. This basic rule has been embodied in section 21(1).

Strict adherence to the basic rule would protect & preserve property so that no one can give a better title than himself has despite the rule, however, it must be emphasied that the sellers either fraudulently allowed innocent third parties to deal with such seller in respect of those goods for value.

Lord denning elucidated this in the case of bishopgates motor finance corp v. transport blakes ltd. This principle was also illustrated in the classical case of Hollins v. fowler. It must further be noted that s.21 of the sale of goods act, provides that a seller is under a duty to transfer a good title to the purchaser and failure to do so would lead to a breach. For a third party to succeed against the original owner, he must show the following:

i. He had taken the goods in good faith and for value
ii. He had no knowledge or notice that anyone else had a better title than the person form whom he was purchasing the goods.

EXCEPTION TO THE BASIC RULE

  1. AGENCY: the very wordings of s.21(1) provides for this exception i.e where a person sells goods under the authority of the owner, he can pass a good title. Such authority may be implied, express, or apparent.
  2. ESTOPPEL: the wording of s.21(1) further adds to this exception when it stated “… unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell”. Thus, an owner can be estopped from denying the seller’s authority to sell where by his words he represents to the buyer that the person in possession of the property was either the true owner or had authority to sell. Thus, in Henderson & co v. Williams, the real owner was estopped from denying the seller’s right to sell since had been held out to be real owner. Estopped can be divided into various types: these are
    i. Estopped by representation
    ii. Estopped by negligence
  3. MERCHANTILE AGENT: although the SGA makes no specific reference to merchant agents s.21(2)(a) cover it by implication by stating that nothing the act is to affect the provisions of the factors act 1889. S.21(1) of the factors act 1889 provides that “where a merchantile agent is the consent of the owner in possession of goods any sales or pledge made by him when acting in the ordinary course in business… shall be valid as if he were expressly authorized by the owner”.
  4. MARKET OVERT: s.22 of the act provides that where goods are sold in the market overt according to the usage of the market, the buyer acquires a good title to the goods provided he buys them in good faith and without notice of any defect or want of title on the part of the seller. A market overt has been defined as an open, public & legally constituted market where people buy and sell openly as opposed to shop outside the market. This is evident in mbanugo v. UAC of nig.
  5. SALE UNDER VOIDABLE TITLE: s.23 provides that “where the seller has a voidable title thereto, but is title has not been avoided at the time of the sale, the buyer acquires a good title to the goods provided that he buys them in good faith”. Note that this section only applies to voidable title & not void ones. Thus, in philps v. brookes ltd, it was held that the pawn broker had a good title to the ring since the contract between the jeweler was good.

Other exceptions to the basic rule include: seller in possession, buyer in possession & writ of execution.


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

Power of Recovery of Possession of Goods (Commercial Law) NG

N.B. This article is particular to Nigeria.

Power of Recovery of Possession of Goods

The hire purchase act 1965, CAP H4 LFN 2004 was passed to regulate hire purchase transaction and it possesses 21 sections. It has been described as the hirer’s act as it is revolutionary and highly protective of the hirer.

Most of the injustices that has characterized the hire purchase system at common law were eliminated. Hire purchase is defined as the bailment of goods in pursuance of an agreement under which the bailee may buy the goods.

The act applies to hire purchase agreement and credit sales agreement of goods where the hire purchase price does not exceed 1000pounds. For hire purchase to be valid under the agreement, there must be a note or memorandum in writing setting out the terms of agreement and signed by the hirer.

HIRER’S RIGHT OF TERMINATION

The hirer has a right to determine the agreement after giving due notice in writing to the owner. This he can do at any time before the final installment falls due. The hirer must then pay

  1. The areas of payment due but which are unpaid at the date of termination.
  2. Any further amount necessary to complete payment of half the hire purchase price unless this has already been paid. This is provided for in section 8. The hirer will also pay damages if he has not taken reasonable care of the goods. According to section 8(2) on termination, the hirer must return the goods to the owner and make the payment stated. This is also evident in section 8(3) of the 1970 amendment. According to section 8(3) in any circumstances where:

    a. A hirer determines or has determined a hire purchase agreement under this section, he shall immediately upon the determination return the goods to the owner and settle all outstanding liabilities subject as prescribed in the foregoing provisions of this section, &
    b. (when amended). Section 8(4) also provides for the rights of the hirer to terminate apart from as provided in this section.

RECOVERY OF POSSESSION BY THE OWNER (SECTION 9)

The act prohibits the owner from enforcing a right to repossess otherwise than by action when relevant. Proportion of the hire purchase price has been paid or tendered unless he had himself terminated the agreement or the hiring as seen in section 9(1) & (3). Relevant proportion means in the case of goods other than motor vehicle (1/2) and in the motor vehicles (3/5) of hire purchase price as evident in section 9(4).

Once the relevant proportion, the owner can only recover possession by action. Failure to do this will lead to the determination of the hire purchase agreement and hirer or any guarantor can recover from the owner all sums already paid by them under the agreement without any deduction.

The hirer will sue for money had & received by the owner and the guarantor can recover any paid under any security given by him as in section 9(2).

Section 9(5) gives the owner a limited right to repossess the goods even though the relevant proportion has been paid. This right exists in the case of agreement relating to motor vehicles only. It arises only when three or more instalments are due and unpaid and only after the owner has commenced proceedings. That is the effect of the words “pending the determination of any action” in the sub section. Thus, if an action is not pending when the owner removes the vehicle, the act of the removal will be unlawful. This is illustrated in the case of tabansi agencies ltd v. incar motors (nig) ltd.

Except as provided from subsection (5) below, in the application of the foregoing provisions to motor vehicles where three or more instalments of the hire purchase price of a motor vehicle under the agreement and unpaid, the owner may removes the motor vehicle to any premises under his control for the purpose it from danger and retain it there pending the determination of any action and the owner shall be liable to the hirer for any damages or loss caused by the removal. This equivalent to section 2 of the hire purchase act (amendent) Decree no 23 of 1970.


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

Law of Attempt (Criminal Law) NG

N.B. This article is particular to Nigeria.

Law of Attempt

The interest of crime prevention would not be well served if a man intending to commit a crime were to be held innocent until he had actually committed the crime intended. Mere intentions is not criminal, however, where that intentions is put into effect, one maybe guilty even before he achieves his aim. Thus, it is an offence to commit an offence.

THE INTENT.

The prosecution must prove that the accused intended to commit the offence which he is alleged to have attempted. Thus in R. V. Seidu, the accused could not be guilty of attempting to commit rape because he did not intend sexual penetration. This is evident also in R. V. Offiong.

Since section 4 requires prove of intent to commit an offence, it is arguable that the rule of ignorance is not an excuse is excluded by necessary implications. It should be noted that a man cannot be convicted of attempting an offense of strict liability unless he consciously intended it.

THE ACTUS REUS

What sort if act constitutes an actus reus? The question must be approached with caution. Section 4c.c in effect requires 3 elements for the actus reus of attempt.

  1. That the accused has begun to put his intentions into execution
  2. That he has not fulfilled his intentions to such an extent as to commit the crime.
  3. That his intentions be made manifest by some overt act.

English law draws a distinction between preparation to commit an offence & an attempt. The former not usually being sufficient to ground liability, though in certain cases it might be expressly declared to be enough.

In R. V. Button, the accused entered for an athletic meeting and filled in the entry form falsely. It was held that he was guilty of attempt to obtain by false pretense.

In R. V. Robison, on the other hand, a jeweler, tied himself up and pretended that his shop had been burgled. His aim was to collect the insurance money but was arrested before-hand. It was held that There was no attempt.

However, none of this takes us close towards a general theory of attempt. As parke B in R. V. Eagelton stated “some acts is required & we do not think that all acts towards committing a misdemeanor is indictable”

This statement was approved in R v. Robison & applied by the northern high court of appeal in Orija V. IGP. The currently most favored test if attempt is that of Mr. Turner in Orija’s case. Smith J. Describes it as being more practical than that in Eagleton

This is described as the Equivocality test. Turner later modified the test as it was too narrow.

ATTEMPT BY OMMISSION

Section 4 only talks about intention being manifested by overt act. But presumably, it would be possible to convict for an attempted criminal omission, at least where the crime was one of intentions.

ATTEPMTING THE IMPOSSIBLE

It is immaterial in a conviction for an attempt which by reasons unknown to the offenders is impossible to be committed. Thus, a man is only guilty of an attempt if he puts his hands into an empty pocket to steal. If the impossibility is a legal impossibility, then there is no attempt. E,g an infant of seven years cannot legally steal.

Whatever doubts may exist on this matter have been resolved by the house of lords in Haugton V. Smith overruling the decision in R. V. Ring.

ATTEMPT TO PROCURE

If anyone procures another to commit a crime, and that person agrees, then there is a criminal conspiracy. If the act is committed, the procurer is guilty as the principal offender even though the committer of the act be not criminally responsible as provided in Section 513c.c


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

Parties to an Offence (Criminal Law) NG

N.B. This article is particular to Nigeria.

Parties to an Offence

A number of people may be involved in the commission of a crime, but the degree of their involvement may differ a great deal & the law has to decide what degree may suffice for criminal responsibility. In the criminal code, there are two distinct classes of offenders –

  1. Principal offenders
  2. Accessories after the fact.

The relevant sections of the code are chapter 2 & section 519-521. However, this may include the case of a man who is neither a principal nor accessory but who neglects to prevent a felony which he knows is being committed or is intended to be committed as provided in section 515c.c.

LIABILITY OF PRINCIPAL OFFENDERS

Section 7c.c creates 4 distinct classes of principal offenders. Each of these have little practical distinctions. For there is a rule that anyone who is found to be a principal of whatever type, is deemed to have taken part in committing the offence & could be guilty of the offence and may be charged with actually committing it.

In R. V. Akpuonu, a father buried his newly born twin in the presence of the mother. It was held that there was no evidence of that the mother took part or aided it. In other words, nothing could bring her within the provisions of S.7.

CLASSES OF PRINCIPAL OFFENDERS

  1. Every person who actually does the act or makes the omission which constitutes the offence. (S.7A)
    Little discussion of this category is necessary. The man who sticks the knife is the one who does the murder. Where a man who does an unlawful act is acting in all innocence as the agent of another’s criminal intentions, then he himself is free of criminal responsibility.
    In R. V. Idiong & umo, idiong intending to procure an abortion induced umo a native doctor to administer drugs to a woman who died as a result. The WACA took the view that imo’s intention was to relieve the woman of pain. It was held applying common law principle that he was not criminally responsible & that idiong was solely responsible.
  2. Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence (S. 7B) & every person who aids another person in committing an offence. (s. 7C.)
    These two provisions may be conveniently discussed together. The difference between them is merely that under S. 7B, the assistance bis done before the act. Whereas in S.7C the assistance is simultaneous with the offence.

    If the aid is not given either prior or at the time of the commission of the offence, but is given after, then the accused is only an accessory after the fact. 3 factors are considered here a. The act if assistance b. Mere presence. c. Commission of a substantive offence.
  3. Any person who counsels or procures another to commit the offence (S.7D)

The last category of principal, those who counsels or procure the commission of a n offence is similar to those who do an act for the purpose of enabling or aiding, although under s.7d, words alone suffice for liability. But the words of counseling must be a sort of positive encouragement as evident in R. V. Idika.

In Ajao v. Alkali amode, an alkali who ordered a policeman to slap an accused for contempt of court was held guilty of assault by virtue if S. 7D.

MENTAL ELEMENTS OF PRINCIPAL OFFENDER

It has been held by the Queensland court of criminal appeal in R. V. Solomon, that S.7 should be read in conjunction with S. 24 & that S. 7 is not intended to create responsibility for unwilled act.

It is submitted that these two authorities provide a correct view of the section since a man cannot be liable for acts which occurs independently of his will as this comes under S. 8 & 9.

LIABILITY AS AN ACCESSORY AFER THE FACT

A person who receives or assists another who is to his knowledge guilty of an offence in order to enable him escape punishment is said to become an accessory after the fact.

Whereas the principal the principal offender is liable to full punishment, the general punishment for an accessory after the fact, is considerably less than 2years maximum imprisonment of it’s a felony & 1 & half years for a misdemeanor.

Actus reus

The actus reus for the offence is receipt or assistance after the commission of a crime. In English law, if a man assists an accessory after the fact, then he himself may become an accessory after the fact. This is provided for in section 10.

Mens rea

The mens rea require is the knowledge of the guilt of the person assisted plus the intention to facilitate escape from punishment which must be proved on all evidence.

Limits to the liability of an accessory after the fact

The law on this subject is wide especially of Sections 10 covers cases of assistance by omission. Section 10 applies to all offences whether felonies or misdemeanor. The only limit provided for in section 10 is that a wife is not an accessory after the fact if she assists her husband to escape punishment. This rule is clearly based on the various emotions which may arise between husband & wife.


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

Corruption in Nigeria (Criminal Law)

Corruption in Nigeria

Would love to read about Corruption in Nigeria – concept, trail, consequences, legal responses etc.? Continue reading.

Around the globe, the negative perception of corruption in public places continue to grow. It’s struggle to retain its place as one of the major causes of poverty is felt. The menace it has created crawls to all levels if the society ranging from the local & national govt, the civil service, down to the judiciary.

The law on the subject of corruption remains far from clear, however, our criminal justice system at least in theory lays great emphasis on the need for integrity in public life. In this bid, the concept of corruption shall be dissected, whilst contribution to the contention of corruption around the universe would be proffered.

CONCEPT OF CORRUPTION

Various scholars, jurist & writers have on different occasions laid down diverse opinions as to its meaning. According to the OXFORD learned dictionary, Corruption is regarded as “the act of impairing integrity, virtue or moral principle; it is the loss of purity, organization & composition”

It is described as a cankerworm which destroys the integral value of the society. Prof Adeyemi of UNILAG is noted to have said –

“Corruption is so prevalent in Nigeria that it requires no definition”

Corruption relates to the embezzlement of funds, nepotism, bribery & refusal to apply necessary sanctions. To the vast majority, it is considered as a “Monster that is felt rather than seen“.

THE TRAIL OF CORRUPTION

Basically, the form of corruption we focus on related to the Govt, political officers & formal sector. However, it extends to the private and informal sector because there exists a link between the private, formal & informal sectors.

Some are of the opinion that corruption was existent during the colonial & post-colonial era. However, in the pre-colonial era, where the class system had not come into place, corruption according to prof. Ijalaye had not existed. It is believed that the discovery of oil in Oloibiri in 1956 by expatriate commenced corruption in Nigeria.

The issue of corruption is very much inter-related with other issues. At the global level, the international (Washington consensus influenced) economic system that has shaped the current form of globalization in the past decades requires further scrutiny as it has created conditions whereby corruption can flourish.

At the national level, people’s effective participation and representation in the society had been undermined by corruption whilst at the local level corruption has made the day to day life more painful for all those affected.

Corruption is prevalent in both developed & developing countries. It is not age restricted as both the young & old have tendencies to be corrupt. A difficult thing to measure is the impact if it in poverty versus the effect of inequalities that are structured into law. Corruption is not limited to the third world countries.

As Prof. Robert Neild, from Trinity college Cambridge University writes on his article, “Public corporation: the dark side of social evolution (London anthem press 2002)

“Rich countries & their agencies have been & are accomplice in corruption abroad, encouraging it by their actions rather than impeding it.”

CONSEQUENCES OF CORRUPTION

The consequences of corruptions are universal even if there could be variation in the level of state and non-state approach to these consequences the history of corruption in fact relates to the creation of the law & the state and was already in antiquity considered an Evil. The following are therefore the effect of corruption:

  1. Corruption promotes poverty: massive corruption in Nigeria has reduced the amount of money needed for development. An instance can be seen in the management of pension & funds in Nigeria. Nigeria according to Quartz Africa, has the largest extreme poverty population about 86.9 million Nigerians living in poverty represents about 50% of its estimated 180million citizens
  2. Creates condition for political instability: this is because unrestricted corruption makes the state an unlimited allocator of wealth to individuals & groups. This characteristic makes it possible for the politics to be a do or die affair.
  3. Criminalization of Nigerian youths: with its capacity to generate poverty & instability, the youths have been systematically hijacked fir selfish ends by unscrupulous politicians. This has also increased interest in Advance fee fraud.
  4. Existence if an illegal economy: the possibility of bribe infiltrating the security system has made it easy for underground economies in counterfeit, adulterated & substandard products. On Mar 2, 2018, a father & son were arrested for selling tramadol to primary & secondary school in Itire area of Lagos.

The European commission in its report found that corruption is costing the European economy about 120million a year and According to The European commissioner for Home affair, Cecelia Malstotrom, the corruption in Europe is most present in public procurement, financing & healthcare.

LEGAL RESPONSE TO CORRUPTION

There are several laws which have been put into place to fight corruption. Most if these laws include:

Criminal code, penal code, EFCC act, ICPC act, money laundering act, code of conduct act, dishonor cheque act, cyber-crime act.

CHALLENGES TO TACKLING CORRUPTION

The world bank group considers corruption as a major challenge to its twin goal of ending extreme poverty by 2030 & boosting shared prosperity for the poorest 40% of people in developing countries. However, some of the following remain as challenges to eradicating corruption

  1. Immunity
  2. No acceptable definition of corruption
  3. Lack of will
  4. Contradictory state policies.

MEASURES TO FIGHTING CORRUPTION

Several measures can be put into place to successfully combat corruption in Nigeria. They include:

  1. Expunging of immunity
  2. Restricting the scope of capitalism
  3. Reinstating china’s system of punishment
  4. Jettison of plea bargain
  5. Strict enforcement of law
  6. Electoral reforms

In conclusion, over the decades, a vast infrastructure of graft and impunity had taken root, taking its place in the political class, business and financial community. Sadly, this extends to the judiciary and media sectors. However, to win this war of corruption, thorough studies and strategies in countering corruption must be upheld.


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

Strict Liability (Law of Tort) NG

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.


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

Malicious Prosecution (Law of Tort) NG

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.


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

Deceit (Law of Tort) NG

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

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

Conversion (Law of Tort) NG

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.

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

Tort of False Imprisonment (Trespass to Person) NG

N.B. This article is particular to Nigeria.

Tort of False Imprisonment

False imprisonment is a Total restraint of the liberty of a person for however short a time without lawful excuse. It should be noted that there need not be any actual imprisonment in the ordinary sense.

In other words, imprisonment has a wider meaning because there may be effectual imprisonment without any walls of any kind. According to Coke C.J

“Every restraint of the liberty of a man is an imprisonment, though he be not within the walls of any common prison”

It is a fundamental requirement of the tort that the plaintiff’s freedom of movement in every direction must have been restricted. “A partial restraint is not sufficient” it must be noted that the restraint must be complete and total, if the plaintiff must succeed in an action for the tort of false imprisonment. In other words, if the plaintiff is free to move in many directions and he was only prevented from moving in one direction, then it would not be considered as constituting the tort of false imprisonment.

In the case of Bird V. Jones, the defendant wrongfully enclosed a part of the public footpath on the Hammersmith bridge and put seats on it for the use of spectators for a boat race on the river and charged for admission into the closure. The plaintiff insisted on passing across the footpath and climbed over the fence of the enclosure without paying the charge. The defendant prevented him from proceeding but told him he could cross to the other side. He refused and remained there. In an action brought for damages, it was held that the defendant was not liable.

Another characteristic of this tort is that it may be committed without physical force. The use of authority is enough. For instance, if a policeman wrongfully orders a plaintiff’s to accompany him to the police station for questioning, the police officer may be liable for false imprisonment. Conversely, an invitation by a police officer to accompany them to the police station cannot be false imprisonment if it was made expressly to him. The case of Aigoro V. Anuebunwa is an illustration.

DEFENCES OPEN TO TRESPASS TO PERSON

  1. Self-defense: An assault or battery is justified if committed in reasonable defense of one’s self to another. Self-defense has been a common law right for centuries & it is now supplemented by stationary rights to use reasonable force to prevent a crime. This is evident bin the provisions of Section 286-288C.C & section 60 of the penal code.

    As stated in cook V. Beal, what is reasonable depends in the circumstances. The defense will only operate if the force used by the defendant is commensurate to that applied by the attacker as evident in Turner V. M.G.N.
  2. Reasonable Chastisement: Traditionally, there has been the case that parents or guardians have the legal right to smack or confine their children & will not be liable for false imprisonment. This is part of the administering of reasonable punishment provided the amount if force is reasonable as stated in S. 295(1) c.c
  3. Consent: consent negates. A tort of consent & battery may be express or implied, direct or indirect. In other words, if the plaintiff consented either expressly or impliedly to the tort of assault & battery, there will be a complete defense. As seen in the case of Wright V. McClean. For instance, those who participate in sports consent to reasonable contact within the rules of a particular game & cannot recover damages for blows inflicted during a boxing match.
  4. Ejection of trespasser: A person entering into a premise of another against the will of that person, may be ejected with force or violence as seen in Brantap daji V. Barbey boroda & central indian railway. In that case, the plaintiff who failed to purchase a ticket by oversight enters a railway on detention, he was asked to leave but refused. He was forcefully thrown out. It was held that the use of necessary force to remove him was lawful.

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