Torts Exam Notes

Sybil Danita Quaye Torts Dimidium Facti Qui Coepit Habet
Introduction
What is a tort?
• Derived from the word tortus which means broken and twisted
• A civil wrong
• Forms part of common law
• Civil wrongs come in three ways: through an intentional act that harms the body and or property and
includes assault, battery or trespass to land, through negligence which unintentionally causes harm to
a person or property or economic injury to persons who we owe duty of care, and through defamation
• For an act to amount to a tort it must be categorized as unlawful behavior by the tort feasor, the
behavior must interfere with the interest of another which is protected by the law, and the victim
should be allowed to seek redress
• Relevant issues concerning torts are that the interest invaded must be protected and the relationship
between the victim and the tort feasor as well as the wrongfulness of the conduct
• Two things further stand out:
• For a tort to be committed, the interest invaded must be one which is protected against the
particular wrongful conduct — note that some interests (interest in security of the person or
property may be better protected than others e.g. economic loss).
• The type of person the tortfeasor is or his relationship to the victim is also relevant e.g.
Rylands v. Fletcher principle requires an occupier as the tortfeasor.
Difference between torts and contract
 Formal- Contract obligation is based on agreement between the parties. But torts obligation is
created by operation of law independent of the consent or agreement of the parties.
 Substantive- The purpose of contract is always to protect the interest in the performance of promises
by others. But the interests protected by Torts are diverse but essentially they aim at maintaining the
status quo.
 Contract gives damages to compensate the plaintiff for disappointment of expectations under the
contract. But tort gives damages only for deterioration in the plaintiff 's position; and so for many
torts there can be no liability if the plaintiffs life or property is unaffected by the defendant's wrongful
conduct.
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 Contractual rights are available only against a particular person, i.e. iura in personam. But the rights
created by the law of torts are available against all persons, i.e. iura in rem.
 Contact liability is for nonfeasance, i.e. omission to act or positive action failing to achieve a particular
promised outcome or result. But tort liability is concerned with misfeasance that is positive actions
causing damage.
Difference between torts and crime
• An act maybe both a tort and a crime such as unlawful harm and theft
• The aim of criminal law is to protect the public interest in the suppression of certain behavior usually
by threatening punishment while the aim of torts is to give private redress to wrongs suffered by
individuals through monetary compensation
History of torts
After the Norman Conquest, actions were brought to the courts under the Kings writs which were issued by
the Chancery. The modern law of torts arise for three writs: trespass vi et armis, trespass on the case, and
detinue which was later abolished. Trespass vi et armis was considered a serious breach of the King’s peace
and attracted a combined civil and criminal proceeding. The allegation of contra pacem later was inserted to
prevent a defendant from waging his law. Gradually the law gave access for the victim to receive monetary
compensation thus converting trespass to tort. Later the fine was abolished and the writ was turned into an
exclusive civil remedy. Categories of trespass include trespass to person (vi et armis), trespass to goods
( bonis asportatis) and trespass to land( quare clasum fregit). A common feature was that the act should be
done by the defendant forcibly and resulting in a direct consequence. Later force became known as unlawful
and therefore did not entail the use of violence necessarily. But there were many gaps such as acts which
caused consequential damage, inactions and undesired results arising a person who submitted himself
voluntarily. These gaps were filled in by trespass on the case. However this writ was different as acts
amounting to case where no actionable per se unless there is proof of actual damage. With the other ones
proof of actual damage was not necessary as the action was unlawful in itself
Basis of liability in modern torts law
• There are two competing interests- the individual’s interest in his security and his freedom of action.
• Liability in torts is said to be strict as the blame worthiness of the tort feasor is not taken into
consideration. This is to promote the first interest. Medieval common law put emphasis on interest in
security at the expense of freedom of action. For, it is in the interest of the victim that the law should
ignore all questions relating to the mental state of the defendant at the time of the tort, so that he can
claim compensation, irrespective of culpability or innocence of the tortfeasor. In this case a person’s
interest in his security was promoted at the expense of his freedom of action. This led to a new
principle which promoted no liability without fault.
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• However in Ghana liability is based on fault. That is whether the person did it negligently or
intentionally. The intent here is not the same as in criminal law. Here the intent is arrived at
objectively. Here the law looks at the effect produced to determine whether defendant's act was so
calculated to produce some such effect that an intention to do so should be imputed to him.
• Fault requires the proof of the intention of the tort feasor. However unlike criminal law torts is mainly
concerned with the objective approach. So if a person acts in a manner to produce an effect which he
knows would produce such effect he is known to have done the act intentionally. This is known as the
concept of constructive intent and it is not popular in criminal law. The emphasis is that the person
knows the effect of his actions. Mere foreseeability would amount to recklessness of negligence
• Negligence means partial or total inadvertence of the defendant to his conduct and/or the
consequence of it
The Aim of torts
• Glanville Williams states that the law of torts aims at providing appeasement, deterrence, justice and
compensation
• Torts aimed at shifting the loss from the victim to the defendant. Recently liability insurance arose as
a means of spreading the loss
• Also, the center of gravity of torts has shifted from torts caused intentionally to torts caused
negligently. Such as industrial and traffic accidents. Nowadays insurance liability covers such tortuous
act. This distributes the loss and critics say this virtually destroys the basis of torts; this is fault
• Deterrence is also affected as the defendant does not pay from his own pocket rather his insurers
does it for him
Battery
The tort of battery is committed by the intentional application of force to another by direct means or through
an unwelcome, physical contact, irrespective of whether intent to harm or hostility involved. The elements of
this tort are:
 Direct act of defendant- The defendants conduct must have caused the basis in the case of battery
that would be the physical contact.
SCOTT V SHEPHERD
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Facts: the defendant on the 28th day of October through a lighted squib into a market place where it landed
near one William Yates who was selling pastries. Recognizing what it was, one Mr. James Willis to protect
himself and the wares threw it across the market in another direction where it fell near one James Ryall,
James also threw it instinctively in another direction where it unfortunately exploded on Mr. Scott’s face.
Procedure: appeal against decision that the defendant was liable for the damages received by the plaintiff
Holding: the damages against the defendant was affirmed as he was liable being that the act in itself was
unlawful and though was a consequential act was instigated by the defendant’s actions. The two people who
came between the actions are not liable as they reacted instinctively. Blackstone dissented mainly because
the damage was consequential and holds view that the third person should have taken better care in
throwing the lighted squib. De Grey CJ
LEAME V BRAY
Facts: the two parties were driving carriages in the night past each other. The defendant’s carriage caused
the plaintiff’s own to topple over and startle the horses. The plaintiff out of fear jumped down and broke his
collar bone
Procedure: Appeal against verdict of trespass against the defendant
Holding: the question about willfulness does not come into play as that was no a requirement for a situation
to qualify to be trespass. The only requirement was that the act by the defendant directly resulted in a
damage against the plaintiff. Here the defendant was driving his carriage with enough force to propel it and it
was a direct act of his that resulted in the damage suffered by the plaintiff and therefore trespass lies. Lord
Ellenborough- where immediate act causes injury to plaintiff trespass vi et armis would lie where it was
consequential action upon the case is a proper remedy.
MILLER V AG
Facts: the plaintiff was given a piece of kente cloth by the father to which he expressed displeasure and with
the father’s consent decided to sell it. He went to the cantonments area with the idea that the residents there
were well to do. He was accompanied by his friend. After no success they arrived at the defendant’s
residence. There they expressed their desire to sell the cloth. The defendant decided not to buy it after
hearing the price with the excuse that it was old. He then questioned them about the ownership of the cloth
to which the plaintiff replied that it belonged to his father. They then decided to leave and was later
approached by a man they met at the defendant’s house that the defendant had changed his mind. They
ignored and was later approached by the defendant in the car where the defendant fired a shot. This scared
the plaintiff and his friend and they started running. A second shot hit the plaintiff in the head and he was
rushed to the hospital while his friend was taken to the police station.
Procedure: Action by the plaintiff against the Republic for damages for head and brain injuries suffered at the
hands of a police officer
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Holdings;
1. A preliminary action was rose against the plaintiff that the action was statute barred and all were
stroke down because the plaintiff filed the charges with the time limit specified, the government did
not fall into the category of being a public officer and a specified law did not apply to the plaintiff’s
case as it did not exist at the time the case was filed.
2. There was no struggle between the defendant and the plaintiff as the defendant was well built and
could have easily over powered them. Also, he did not report it in the station diary when he first went
to the police station. All evidence leads to the point that he is lying.
3. There was no justification in the defendant using violence on the boys as they did not attack him. He
fired the first shot when he could have effectively arrested them prior to that. Also, at the time there
were many options available to him to effect the arrest of the boys. He was there for liable as he
intentionally fired the shot and it was his shot that resulted in the injuries suffered by the boy.
COVELL V LAMING
Facts: the defendant steered his ship into the plaintiff although evidence shows that he made efforts to steer
away from the plaintiff’s ship.
Procedure; action of trespass against defendant
Holding: it does not matter whether the act was willful. The most important thing is that it was direct. The
defendant is therefore liable for trespass. Lord Ellenborough
From the cases, we can see that this element is not a 'directional' point but an issue of "causation”.
 The act complained of must be voluntary- This refers to controllability, not whether the defendant
acted willingly. This is illustrated by the case of. GIBBONS V. PEPPER.
 State of mind of defendant- To succeed, the plaintiff must establish that the defendant acted either
intentionally or negligently. As noted earlier, intentionally here means deliberately; negligently refers
to inadvertence or recklessness.
LETANG V COOPER
(to succeed plaintiff must establish if the act was done intentionally of negligently)
Facts: the defendant drove his car over the legs of the plaintiff while she was sunbathing on the grass which
doubled as a parking lot. More than three years after the incident the plaintiff brought actions against the
defendant
Procedure: appeal against decision concerning the action against defendant for trespass and negligence
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Holding: the appeal was allowed as the act amounted to case and had a limitation of three years. Even if it
was not case, it amounted to negligence as there was a breach of duty for the defendant to drive over the legs
of the plaintiff. This made her action statute barred as breaches of duty covered both trespass and case. The
act was considered negligent as it was not intentional. Lord denning did not believe there was such a thing as
negligent trespass or battery and was supported in Wilson v Pringle
HOLMES V MATHER
Facts: a servant could not stop his horses which had run away but could to an extent guide them. The
defendant asked his servant who was sitting next to him not to interfere with the driving. While turning the
corner he accidentally knocked down the plaintiff
Procedure: action against defendant for trespass and negligence
Holding: the defendant was not liable even though the act could have resulted in trespass had it not been for
the fact that all efforts of the defendant were geared towards protecting himself and people on the street.
The horses almost run into the shop but he prevented that from happening by guiding them to turn a curve
and made efforts to prevent them from running into the plaintiff. In this case he did not choose the lesser of
the two evils and therefore was not liable for trespass even though his action directly resulted in the injury of
the plaintiff. In other words the act was neither willful nor negligent.
Where a master gives direction to a servant and the servant causes injury to another the master is liable for a
trespass in case but where it is shown that the servant clearly told the master not to interfere, the master is
not liable
STANLEY V POWELL
Facts: the defendant was pheasant shooting when one of his pellets struck the plaintiff in the eye, the gun
was not pointed in the plaintiff’s direction and appeared to have bounced of a tree and hit the plaintiff
Procedure: action against defendant for negligence
Holding: the act did not amount to negligence as it was not shown that the injury resulted from a lack of skill
by the defendant. The jury therefore rejected this claim. The act did not also amount to trespass as it was not
intentional or negligent. Judgment was made for the defendant.
FOWLER V LANNING
Facts: the plaintiff alleges that he was shot by the defendant. The defendant denies this and objects to the
plaintiff’s statement of claim.
Procedure: action against plaintiff claiming damages for trespass
Holding: the preliminary action rose by the defendant against the plaintiff that he did not state in his
statement of claim whether the act by the defendant was intentional or negligent and therefore having no
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cause of action was allowed. The onus of proof was on the plaintiff and he therefore had to establish whether
the act by the defendant was done intentionally or negligently. His statement of claim did not show this and
therefore he had no cause of action- per Brambell B
 There must be physical contact with the person of plaintiff- This contact can be person to person
or through an instrument.
FAGAN V METROPOLITAN POLICE COMMISSIONER
Facts: the defendant was reversing at a zebra crossing when the plaintiff, a constable asked him to pull over
so he could produce documents relating to his driving. The defendant drove on the plaintiff’s foot and stayed
there for a while even after the plaintiff yelled at him several times to get of his foot.
Procedure; appeal against conviction of assault on a constable
Holding: the initial act of the defendant may not be intentional and thus may not amount to assault by the
continuation of the act after he realized the car was on the plaintiff’s foot amounted to an assault because it
was clear that he did so intentionally. The assault is synonymous to battery and it matters not whether the
battery is inflicted directly by the body of the offender or through a medium of some weapon controlled by
the offender.
The Divisional Court agreed that assault cannot be committed by an omission. However, in this case, the
crime was not an omission to move the car; rather, it constituted a continual act of battery. The offence was
not complete until the moment Fagan realized that he had driven onto the foot of the officer and, in deciding
not to cease this continual act, formed an intent amounting to the mens rea for common assault. Since
both mens rea and actus reus were present, an assault had been committed, and Fagan's conviction was
upheld.
R V COTESWORTH
Facts: the defendant spat in the plaintiff’s face
Holding: battery per Holt CJ
COLE V TURNER
The least touching of another in anger is battery. But should the touching be hostile for it to amount to
trespass? the judges in Wilson v Pringle said yes but was rejected by Collins v Wilson and In Re F
HOPPER V REEVE
The slightest touching of another in anger would amount to battery
DUMBELL V ROBERTS
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Facts: the plaintiff on his way home was stopped by the defendant who enquired about the soap flakes he
was carrying. Not satisfied with his answer, the defendants arrested and detained him without warrant and
had no reasonable ground on which to detain him. He also did not enquire as to his name or address. He was
charged with two counts of unlawful possession of soap flakes
Procedure: action of false imprisonment against defendant
Holding: the powers to arrest without warrant came with limitations. The defendants did no enquire about
the name and address of the plaintiff and therefore his arrest was unlawful as well as unreasonable and they
had no cause to suspect him of a crime. Where it is obvious that the person is not making any attempts of
escaping enquiries should be made ascertain whether the person may be innocent or guilty. Scott LJ- it was
trespass to even take a person’s finger prints who has not yet been convicted without his consent
 Lack of Consent- The plaintiff must prove that he or she did not consent to the contact. This can be
proved in three ways:
o Express consent- It is not a battery, if the defendant proves that the plaintiff expressly agreed
or submitted to the contract. Many events of everyday occurrence, e.g. a haircut, a surgical
operation or a passionate embrace will be battery but for the fact that consent operates as a
defence to action in battery.
CHRISTOPHER V BARE
(if the defendant proves that the plaintiff expressly agreed to the contact it would serve as a
defense to battery)
Facts: the plaintiff was imprisoned against his will for a period of one month and twenty five
days. The defendant claims the plaintiff consented to it
Procedure: action against defendant for trespass and false imprisonment
Holding: a plaintiff is not said to have consented to be assaulted or imprisoned if it was against
his will
NASH V SHEEN
The plaintiff asked the hairdresser for a permanent wave but was instead given a tone rinse
which dyed the plaintiff’s hair an unpleasing color and caused him a painful rash all over his
body. It was held that the act amounted to battery because the consent was for a permanent
wave.
o Presumption of consent-There is a presumption, in general, of consent to all non-hostile

contacts merely incidental to living in a community. Thus, in COLE V. TURNER, Holt C.J. said: "if
two or more meet in a narrow passage and without any violence or design of harm, one touches
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the other gently, no battery. But if one in a desire to gain advantage shoves another aside in an
inordinate and violent manner, this is a trespass."
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DONELLY V JACKMAN
The defendant while on duty asked to speak to the appellant. The appellant refused and the
defendant lightly tapped him on his shoulder. The appellant turned around and slapped the
defendant yelling that he was now even. Held- it is not every slight interference of one’s
liberty that would amount to course of conduct sufficiently to take a police officer out of his
course of duties. Appeal was dismissed.
WILSON V PRINGLE
The plaintiff alleges that the defendant jumped on him and as a result he fell down and
sustained injuries. The defendant denies this accusation and states that he merely pulled on
the bag of the plaintiff in an act of ordinarily horseplay which has begun by the plaintiff and as
result fell down and sustained the injuries. Held- although certain acts may amount to
battery, allowances need to be made as everybody is subject to some form of battery in
everyday life. Some form of punishment is allowed when parents are punishing their kids,
pats received on the back whether consented or not at a social event and so on. In an action of
battery it had to be proved that such contact went beyond what normally occurs in everyday
life and that the act was deliberate or negligent. In the circumstances surrounding the event it
was not proved that the defendants act was in hostile manner. The judge took a narrow view
as to what would amount to trespass. Appeal was allowed.
o Privileged contact- this is contact permitted by law. To determine whether a contact is

privileged, look at:
a) Nature of the act. — a blow or a pat?
b) Intention with which the act was done.
Sexual touching can amount to a battery — GUARRO V. US
WIFFIN V KINCARD
The plaintiff had posted himself against some rails to view a mad ox when the defendant, a
constable tapped him with his staff to get his attention. The defendant asked him to get down
to which he refused. The defendant grabbed him by the collar and took him to a watch house
where he was kept before he was made to appear. Held- the tapping of the shoulder with the
staff did not amount to battery. They were not sure as to whether grabbing of the collar could
amount to battery. The plaintiff was however not entitled to full costs of assault and battery
unless the Judge certified it and this was not done. In respect to the imprisonment, it was
certified which the Plaintiff was deprived of his costs.
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COWARD V BADDELEY
The defendant was hosing down a burning house when the plaintiff passed by and made
comments to the displeasure of the plaintiff. He went away and came back repeating those
words. The defendant then handed him over to the police who was standing nearby. The
defendant claims he asked the plaintiff to mind his business but then he (plaintiff) grabbed
him by the shoulder and violently turned him around and thereby turning the hose away from
the fire. Held- the touching of the defendant by the plaintiff was to get his attention and was
not done in a hostile manner. Also, there was the absence of intent for criminal assault. Appeal
allowed
AGBOVI V SETORDZIE
The plaintiff damaged a fence a warrant was put in for his arrest. He turned himself in a few
days later and claims to have been assaulted by the police to which he provided a medical
report showing the injuries he sustained. The police claimed their actions fell into the
category of them exercising their duties. Held- the defendant failed to send the plaintiff t court
on the day he was imprisoned and also investigation were not made into the incident coupled
with refusal of bail amounted to malice. The compensation must bear a reasonable
relationship to the ferocity of the assault. Considering the circumstances, the plaintiff was
awarded damages
COLLINS V WILLCOCK
The appellant was suspected by the defendant to be a prostitute as the woman she was
walking with was a known prostitute and their behavior was suspicious. The respondent
asked the appellant to get into the car where she would be questioned to which the appellant
paid no mind. The respondent got out of the car and grabbed the appellant’s hand and she was
scratched. Held- the police woman’s action amounted to battery because in cautioning the
appellant she did not have the authority to detain her. The appellant’s action of scratching her
was in self-defense.
RE F
F was a 36 year old woman. She had a serious mental disability caused by an infection when
she was a baby. She had been a voluntary in patient in a mental hospital since the age of 14.
She had the verbal capacity of a child of two and the mental capacity of a child of 4. She
developed a sexual relationship with a fellow patient. Her mother and medical staff at the
hospital were concerned that she would not cope with pregnancy and child birth and would
not be able to raise a child herself. Other methods of contraceptives were not practical for her.
They sought a declaration that it would be lawful for her to be sterilized. F was incapable of
giving valid consent since she did not appreciate the implications of the operation. Held-The
declaration was granted. It would be lawful for the doctors to operate without her consent.
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o Positive act not omission to act- In battery, liability depends on an act, not a
failure/omission/refusal to act. The maxim is: 'Not Doing Is Not Trespass'.
INNES V WYLIE
Earlier the plaintiff had made some menacing comments to the defendants and his refusal to
apologize made them remove him from their society group. They were having a dinner when the
plaintiff appeared there uninvited and made attempts to enter the room but was prevented from
doing so as he was gently pushed out. He was prevented from entering by a policeman under the
orders of the defendant. Held- the plaintiff was still a member of the group even though those who
were for his eviction had no paid their dues. They had until the end of the month. Also, he was not
called to defend his charge and therefore his removal from the society was not valid. However
trespass requires a positive act. Just standing there and preventing someone from entering
constitutes an omission. To amount to battery the action must be positive
Assault
Assault — This tort is unique in the common law in providing relief for a mere emotional disturbance unaccompanied by
external physical contact. Assault seeks to protect the plaintiff's interest in freedom from being subjected to mental
anxiety. The law, i.e. the requirements, are substantially the same as that of battery, except that, in assault, there is only
an apprehension of imminent physical contact.
Assault may thus be described as an incomplete battery. Timorousness on the part of the plaintiff is relevant; provided
the defendant excites apprehension or fear of contact in him, there is assault. But note not just fear; it must be fear of
contact. For example, neither a gesture (a) behind bar, or (b) by a person firmly secured from causing harm to others can
constitute assault because any fear one feels of being hurt would be considered unreasonable in law. For in the person's
situation, he cannot carry out his threat. This means for the threat of battery to amount to assault, the threat must be
real or reasonable.
In Read v. Coker,the plaintiff, a paper stainer, was in financial difficulties and owed rent. The defendant paid the rent and
bought his equipment under an agreement which secured for the plaintiff a weekly allowance. One day, the defendant
asked him to leave the premises. The lain tiff refused. The defendant thereupon collected together his workmen who
musterec round the plaintiff tucking up their sleeves and aprons and threatened to break the p. tin tiffs neck if he did not
leave. The plaintiff left, and brought an action for assault. It was held: No words can amount to assault; but there were
here threats of violence, exhibiting an intention to execute the threat, coupled with ability to act. i.e. present ability to
carry the threat into execution. As was stated by Jervis C.J:
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"... If anything short of actual striking will in law constitute Lin assault, the facts here clearly showed that defendant was
guilty of assault. There was a threat of violence exhibiting an intention to assault, and a present ability to carry the threat
into execution."
It is not every threat then which constitutes assault. To constitute an assault, there must be an act constituting a threat,
to do personal violence to the party, complaining, coupled with a present ability to carry out the threat. There must be
some act done denoting an intention to commit a battery plus the ability there and then to carry out the threat. The
concern therefore is with an intentional conduct which puts a person in reasonable fear or apprehension of imminent
battery.
A vivid analogy is the difference between the BARK of a dog, which equals
assault and the BITE which is battery. The law of assault thus has all the ingredients of a battery except physical contact.
The tort, however stresses two things: (a) an act manifesting an intention or threat of the defendant to commit battery;
and (b) the defendant's ability to execute this intention, i.e.
the defendant was in a position to commit and did manifest an intention to commit battery: see Thomas v. National
Union of Mine workers (South Wales Area); and Stephen v. Myers. In Stephens v. Myers the plaintiff was acting as
chairman at a parish meeting, and sat at the head of the table at which the defendant also sat. There were about six or
seven people between the plaintiff and the defendant. In the course of some angry discussion, the defendant made
himself totally intolerable (interrupted the proceedings) and a motion was moved and passed to eject him from the
meeting. The defendant said he would rather pull the chairman out of the chair than allow himself to be turned out. He
advanced threateningly towards the chairman with his fists clenched but he was stopped by the church warden before he
got near enough to do any harm. The plaintiff (i.e. the chairman) sued him for assault. Tindal C.J. in his summing up said:
"It is not every threat, when there is no actual personal violence, that constitutes an assault, there must, in all cases, be
the means of carrying the threat into effect. The question I shall leave to you will be whether the defendant was
advancing at the time in a threatening attitude, to strike the chairman, if he had not been stopped; then, though he was
not near enough at the time to have struck him, yet if he was advancing with that intent, I think it amounts to an assault
in law. If he was so advancing that, within a second or two of time, he would have reached the plaintiff, it seems to me it
is an assault in law. ..."
The jury found for the plaintiff, so it is assault.
Therefore, if we look at assault from this angle, that is, a threat and ability to carry out the threat, to point an unloaded
gun at another constitutes no assault. The point is illustrated by the decision in Blake v. Barnard!" Here there was proof
of the pointing of a pistol at the plaintiff's head, but there was no proof of the pistol being loaded. The court held there
was no assault.
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Attempts have been made to diminish the authority of the case on the grounds that it was decided on a pleading point.
But it is entirely consistent with the old law's conception of assault as a threat of battery plus present ability to effect the
threat.
We may also look at the decision in Osborn v. Veitch. There, it was held that to point a half-cocked gun to the head of
another, and threaten to shoot was an assault, since cocking the gun was as good as having loaded it. See also Miller v. A-
G per Abban J (as he then was): To point a loaded revolver at another in such a hostile manner and within shooting
distance and which conduct puts that other person in reasonable fear or apprehension of a battery constitutes assault.
But, in R. v. St. George, it was held that to point an unloaded gun at another in circumstances that if it had been loaded its
discharge would have been likely to cause injury is an assault, unless the intended victim knows it to be empty. In
contrast with the decision in Blake v. Barnard, it was held that, whether loaded or unloaded, a pistol is a pistol and to
point it at a person therefore constitutes assault. Once the plaintiff apprehends imminent physical contact, then, it is an
assault. This is contrary to the decision in Blake v. Barnard.
In Mortin v. Shoppee,10 the defendant chased the plaintiff with an uplifted whip intending to strike him but the plaintiff
escaped. Chasing with an uplifted whip was held to be assault, because the defendant was advancing with intent and he
had the ability to execute the threat. In Read v. Coker, the mere surrounding of the plaintiff with servants was held to
constitute assault.
Can mere words constitute an assault? In the old law, words per se, no matter how menacing, did not constitute assault.
This was justified on grounds that merely saying and not doing does not constitute trespass. In Meade v. Belt's. Case,11
the defendants went to Meade's house at night and threatened to show him if he came out. They sang threatening war
songs and used violent language. Meade came out with a loaded gun and shot one of them. It was held that the attack on
the house at night constituted assault, and not the words per se. But in R. v. Wilson, the appellant was caught poaching
by a gamekeeper. He was charged with assault on the gamekeeper with intent to evade arrest. The arrest was found
unlawful because only the name instead of the name plus address, as required by statute, was asked for by the
gamekeeper. The poacher was convicted of common assault and appealed. It was held that when he was surprised by the
gamekeeper, he shouted "Get out knives." Per Lord Goddard, C.J.:
"... No doubt what the court thought was the serious part of this case ... was that the man threatened to get out knives.
He called out "Get out knives", which itself would be an assault, in addition to kicking the gamekeeper."
R. v. Wilson thus hold that words can cause assault, provided they create a reasonable apprehension of imminent
physical contact.
Even if words alone cannot constitute assault, words accompanying an act can negate assault, so it was held in Tuberville
v. Savage. This was an action for assault, battery and wounding; the defendant alleged provocation. The evidence to
prove the provocation was that the plaintiff put his hand on his sword and said: "if it were not assize-time, I would not
take such language from you." Was that an assault? The court held that it was not. For what the plaintiff meant was that
he would not assault him because the judges were in town. The intention as well as the act equals assault.
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"Therefore if one strike another upon the hand, or arm or breast in discourse, it is no assault, there being no intention to
assault; but, if one, intending to assault, strike at another and miss him, this is an assault; so if he holds up his hand
against another in a threatening manner and says nothing, it is an assault."
Judgment was given in favour of the plaintiff in the substantive suit. A point to note here is that the touching of the sword
was considered an assault by itself.
Bruce v. Dyer,' provides a reasonable rationalisation of the controversy over loaded and unloaded guns, toy weapons and
words. In that case, Ferguson J put die point as follows:
"Usually, when there is no actual intention to use violence there can be no assault. When there is no power to use
violence to the knowledge of the plaintiff there can be no assault. There need not be in fact any actual intention or power
to use violence, for it is enough if the plaintiff on reasonable ground believes that he is in fact in danger of violence. So if a
person shakes his fist at another the person so assaulted may strike back, if he, on reasonable grounds, believes that he is
in danger."
Principles governing the award of damages: battery and assault
Assault and battery are actionable per se. Once the tort is acknowledged, damages are at large. Any consequential loss,
e.g. damage to chattels or physical injuries, is recoverable, if it is not too remote. But the quantum of the damages
depend on proof of actual loss.
In Nsiah v. Ampratwum, Apaloo J (as he then was) assessed general damages at £1,500 in favour of the plaintiff because
he found the
"assault was outrageous in the extreme and was, entirely unprovoked. The plaintiff was severely beaten and left for dead
and with a stroke of bad luck, may well have died ... In all the circumstances of this case, and bearing in mind that the first
defendant used these sanitary labourers as tools to vent his private vengeance on the plaintiff and did so callously. ..."
See also Glover v. London S. S.W. Rly., and Cobbold v. Grand
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Unlawful arrest
Everyone in Ghana is entitled to freedom from physical restraint and is protected against unlawful interference with his
or her freedom of movement and personal liberty. The tort of unlawful arrest secures these freedoms. The law on
unlawful arrest is to be found in three sources: (a) the common law; (b) the Criminal; Procedure Code, 1960 (Act 30) as
amended by N.R.C.D. 235: and (c) articles 14 and 21 of the Constitution. 1992 of Ghana.
The case of Christie v. Leachinsky provides the common law rules. In that case, the appellants who were Liverpool police
officers arrested the respondent at his warehouse in Liverpool, without a warrant. At the time, they suspected and had
reasonable grounds for suspecting that he had stolen or feloniously received, at Leicester, a bale of cloth then in the
warehouse, but they did not give this as the ground of the arrest. Instead they said they were arresting him on a charge
of "unlawful possession" under the Liverpool Corporation Act, 1921, though in the circumstances, the Act gave them no
power of arrest without warrant. The respondent was taken to the police station and brought before a magistrate on the
unlawful possession charge. In an action for false imprisonment, the appellants sought to justify the arrest and detention
on the common law ground. Per Viscount Simons."
"(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a soil which does not
require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not
entitled to keep the true, ground to himself or to give a reason which is not true. In other words, a citizen is entitled to
know on what charge suspicion of what crime he is seized.
(2) If the citizen is not so informed hut is nevertheless seized, the policeman, apart from certain-exceptions is liable for
false imprisonment.
(3) The requirement that the person arrested should be informed of the reason why he is seized naturally. does if the
circumstances are such that he must know the alleged offence for which he is detained.
4) The requirement that he should be so informed does not mean that technical or precise language need be used. The
matter is a matter of substance, and turns on the elementary proposition that, in this country, a person is, prima facie,
entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason
why it is claimed that this restraint should be imposed.
(5) The person arrested cannot complain that he has not been supplied with the above information, as and when he
should be if he himself produces the situation which makes it practically impossible to inform him e.g. by immediate
counterattack or by running away....
These principles equally apply to a private person who arrests on suspicion."
Per Lord Simonds at 591:
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"Blind, unquestioning obedience is the law of tyrants and of slaves: it does not yet flourish on English soil."
Nobody therefore has a right to an another unless authorised by-law. As indicated earlier, the law on arrest is contained
in the Criminal Procedure Code, I960 (Act 30). Under the general law i.e. Act 30 there are two types of arrest:
1. Arrest with a warrant, in which case there can be no action because the warrant is issued by a judicial officer and the
judicial officer's intervention ends any action, i.e. false Imprisonment. This is because, constitutionally, a judge enjoys
immunity from action.
2. Arrest without warrant.
Both types of arrest are regulated by various provisions of Act 30.
1. Arrest with a warrant under sections 71-81 of Act 30
Sections 72-73(1) provide that the warrant can be issued only by a judge upon a complaint or charge made before him on
oath. Section 73(2) requires that the warrant must:
a) state briefly the offence with which the person against whom it is issued is charged;
b) indicate the name or other description of the person e.g. Koku Mensah; and
c) order the person persons to whom it is directed to apprehend the person against whom it is issued and, bring him
before the issuing court or some other court with jurisdiction over the matter to answer the charge(s) against him and to
be further dealt with according to law.
The warrant remains force until executed or cancelled by the issuing court. The warrant may be directed to more officers
or persons than one. The person executing the warrant is required without unnecessary delay, to bring be person
arrested before the court mentioned in the warrant, with an endorsement showing time and .place of the execution.
Where a person has been lawfully arrested, the police can search the premises or his person and seize material relevant
to the prosecution of any crime committed by any person. Generally, therefore, the law requires arrests to be made with
a warrant
2. Arrest without warrant
The law distinguishes between arrest private , individuals, and by law enforcement agents e.g. the police, without a
warrant. In this case, a police officer or other law enforcement agent having police powers has greater protection than a
private citizen i.e. greater powers of arrest without warrant. This is regulated by sections 10 and 12 of Act 30 as amended
by the Criminal Code (Amendment) Decree, 1975 (NRCD 235).
(a) Arrest by a private person:

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Section 12 of Act 30 as amended by the Criminal Code (Amendment) Decree, 1975 (NRCD 235) regulates this subject. The
relevant rules are briefly stated below. A private person may arrest without warrant any person who, in his presence,
commits five offences namely
1. any offence involving the use of force, or violence;
2. any offence whereby bodily harm is caused to any person;
3. any offence in the nature of stealing or fraud;
4. any offence involving injury to public properly;
5. any offence involving injury to property owned by, or in the lawful care or custody of that private person.
Further, a private person may arrest without warrant any person whom he reasonably suspects of having committed any
of the offences mentioned above, provided that an offence of that nature has in fact been committed. The case of Waller
v. Smith & Sons explains this provision. In that case, the plaintiff was for nine years assistant manager at a bookstall of the
defendants at the King's Cross Railway Station of the Great Northern Railway. Early in 1912, at the half yearly stocktaking,
deficiencies were discovered. It was clear this must be due to pilfering on the part of one or more of the defendants'
servants. Stocks were taken in February, and April and further deficiencies were noted. The defendants, in order to
detect the culprit, set a trap. Copies of the book "Traffic" were marked and delivered at the bookstall at King's Cross. An
agent of the defendants went to a shop at Staines kept by the plaintiff and his wife to purchase a copy of the book. One
of the marked ones was sold to him. The book had been taken by the plaintiff on 15 June, 1912 from the bookstall
without payment having been made and without the knowledge, of the manager or the assistants. After inquiries, it was
discovered that the plaintiff had also breached his contract by setting up, together with his wife, a rival company. The
plaintiff was questioned and he gave unsatisfactory answers as to how he came to possess the marked book. Mr. Hornby
honestly believed the plaintiff to have been responsible for the thefts which had been going on, and handed him over to
the police. He was taken to the police court and charged with stealing the book. He was eventually acquitted. His
defence, which was accepted by the jury, was that, in taking the book, he had no felonious intent. In the substantive suit,
the defendant did not allege that he had stolen the book and did not associate him with the earlier thefts. He instituted
his action for false imprisonment and malicious prosecution.
Sir Rufus Isaacs C.J., relying on the statement of law, as is to be found in Bullen & Leake's Precedents of Pleading (3r ed) p.
797 stated the applicable law as follows:
"At common law, a police constable may arrest a person if he has reasonable cause to suspect that a felony has been
committed although it afterwards appears that no felony has been committed, but that is not so, when a private person
makes or causes the arrest, for to justify his action he must prove, inter alia, that a felony has actually been committed. ...
I have come to the conclusion that it is necessary for a private person to prove that the same felony had been committed
for which the plaintiff had been given into custody. ..."
He stated:
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"A private individual is justified in himself arresting a person or ordering him to be arrested where a felony has been
committed and he has reasonable grounds of suspicion that the person accused is guilty of it ~ that means the felony for
which he has been arrested."
He further stated:
"Where a person, instead of having recourse to legal proceedings by applying for a judicial warrant for arrest or laying an
information or issuing other process well known to the law, gives another into custody, he takes a risk upon himself by
which he must abide, and, if, in the result, it turns out that the person arrested was innocent, and that therefore the
arrest was wrongful, he cannot plead any lawful excuse unless he can bring himself within the proposition of law which I
have enunciated in this judgment. In this case although the defendants thought, and indeed it appeared that they were
justified in thinking, that the plaintiff was the person who had committed the theft, it turned out in fact that they were
wrong. The felony for which they have handed the plaintiff into custody had not in fact been committed, and, therefore,
the very basis upon which they must rest any defence of lawful excuse for the wrongful arrest of another fails them in
this case. Although I am quite satisfied, not only that they acted with perfect bona fide in the matter but were genuinely
convinced after reasonable inquiry that they had in fact caught the perpetrator of the crime, it now turns out that they
were mistaken, and it cannot be established that the crime had been committed for which they gave the plaintiff into
custody; they have failed to justify in law the arrest, and there must, therefore, be judgment for the plaintiff. .. ."
In summary, the law allows a private individual to arrest another on suspicion.

However three conditions must be satisfied otherwise the arrest will be unlawful. First,
the basis for the suspicion must be reasonable. Second, the arrest must be related to the five offences listed above. Third
the offence must have actually been committed by the person being arrested. The law is thus clear that when a private
individual arrests another without a warrant and the suspected offence is found not to have been committed for
whatever reason he opens himself to a suit for unlawful arrest.
(b) Arrest by police officer
This subject is regulated by section 10 of Act 30 as amended by the Criminal Code (Amendment) Decree, 1975 (NRCD
235). As with the case of an arrest by an individual without a warrant, the applicable rules provide for two different
scenarios. Thus:
(1) A police officer may arrest without warrant any person who:
a) commits an offence in his presence;
b) obstructs a police officer in the execution of his duty, i.e. in the lawful execution of his duty;
c) has escaped or attempted to escape from lawful custody;
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d) has in his possession any implement adapted or intended for use in unlawfully entering any building, and who gives
no reasonable excuse for his possession of it;
e) has in his possession anything which may reasonably be suspected to be stolen property.
It must be noted that, unlike arrest by a private individual, here in the case of a police officer or a law enforcement agent,
there, is no requirement that the offence must be committed in his presence and there is no limit on the offences for
which the arrest can be made.
(2) A police officer may arrest without warrant any person whom he suspects upon reasonable grounds:
a) of having committed an offence;
b) of being about to commit an offence, where there is no other practicable way of preventing the commission of the
offence;
c) of being about to commit an offence, where he finds such a person in any highway, yard, building or other place
during the night;
d) of being a person for whom a warrant of arrest has been issued by a court;
e) of being a deserter from the Armed Forces;
f) of having been concerned in any act committed outside Ghana, which, if committed in Ghana, would have been
punishable as an offence, and for which he is, under any enactment, liable to be arrested and detained in Ghana.
In the case of arrests by police officers on suspicion, the law only requires that the police officer grounds for suspecting
the arrestee be reasonable. The decision in Dallison v. Caffery provides the test for what is reasonable. In that case, an
amount of £173 was stolen from the office of a solicitor at Dunstable. A man named Dallison was arrested and charged
with the offence. At the Quarter Sessions, counsel for the prosecution offered no evidence against the plaintiff, stating
that it was a case of mistaken identity. Accordingly, the plaintiff was acquitted and discharged. The police officer in charge
was Caffery. The plaintiff sued Caffery for false imprisonment and malicious prosecution. The judge dismissed the claim.
He appealed. Lord Denning was satisfied that the defendant had reasonable cause for suspecting that the plaintiff had
committed the crime. The test for reasonableness for the arrest is objective namely:
"Whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by
the defendant would believe that there was reasonable and probable cause."
General provisions relating to arrest
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Section 3 of Act 30 is relevant here. To arrest a person you must actually touch or confine the body of the arrestee, unless
he submits to custody by word or deed. A case which illustrates this requirement is the case of Asante v. The Republic. In
that case K lodged a complaint that she had been assaulted by the appellant. An escort police constable was detailed to
go with her to invite the appellant to the police station. The police constable, when the appellant was found, showed him
his identity card and invited him to the police station. The appellant refused to go. The police constable did not tell him
why he was wanted at the station. Upon the appellant's refusal, the police constable seized his ignition key thus
preventing him from driving away. To retrieve the key, the appellant knocked the police constable down and whilst the
police constable was on the ground, kicked him injuring him and damaging his trousers. The appellant was convicted of
two charges of assault on the police constable in the execution of his duty and of causing damage to the property of the
police constable. He appealed arguing:
a) his arrest was unlawful on the evidence;
b) ipso facto, he was justified in resisting unlawful arrest; and
c) his conviction on charge 2 was bad because the value of the property rather than the value of damage was
considered.
His appeal was allowed on the ground that the arrest was unlawful because:
The police constable failed to put the appellant under lawful arrest by not informing him of the cause of the arrest as
required by section 10 of Act 30 (now NRCD 235) which empowers a police man to arrest without warrant; and the police
constable committed assault on the appellant by refusing to leave the spot where the appellant was and seizing his
ignition key which was not an integral part of the process of arresting the appellant.
Anterkyi J stated at 193:
"And if as the jeep id shows, the EPWI merely told the appellant that he was wanted. It or being invited to the police
station, the appellant was not legally obliged to go there for a mere chat."
The conviction on charge two was also set aside because the appellate court agreed with him.
Section 4. If you are arresting A by warrant and you believe he has entered a house, the occupier is required to afford you
reasonable facilities to search the place for the person. If this fails, you can break into the place to effect the arrest.
Section 5. The person effecting the arrest may likewise break out to liberate himself.
Section 6. DPP v. Hawkson; Lewis v. Chief Constable. Person arrested is to be subjected to no more restraint than is
necessary to prevent his escape, see Article 15 of 1992 Constitution.
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Section 7. Unless the arrestee is caught in flagrante delicto, the arrestor shall inform the arrestee of the cause of the
arrest; where he is acting under a warrant, notify the arrestee of the substance of the warrant and show it to him if he so
desires. We can illustrate this provision by reference to the decision in Yaw v. Cobbina. In Yaw v. Cobbina, the plaintiff
had earlier lodged a complaint for the ejection of his caretakers from the farm.
Until late in 1958, he was the chief of Yamfo, a town near Sunyani. He was destooled and notice to that effect was
published in the Gazette of November 1958. He was further ordered to hand over all the stool properties to Nana Boama
11, the new chief, who was authorised to seize and take possession of such properties. He was allegedly restrained when
he would not give up the black stools and imprisoned in Sunyani. Police justification was that he was arrested and
detained for committing in their presence the offence of hindering the recovery of the stool property. He further alleged
that he was not
told the reason why he was arrested. The plaintiff sued for £5,000 damages for unlawful arrest and false imprisonment.
Held: The arrest and detention were not unlawful and the plaintiff was released, as soon as the police decided not to
prosecute him. It was not unlawful because it was in consequence of his refusal to hand over the black stools, an act
which was an offence liable to summary conviction under the Statutes Law
(Amendment) (No. 2) Act, 1957, s. 7. In the circumstances, he ought to have known the reason for his detention and it
was not necessary for him to be told.
In Asumani Bugembe v. Attorney-General, from conflicting evidence, the court found that the plaintiff was injured when
resisting arrest in his shop at Nakawa, in the city of Kampala but that the police failed to inform the plaintiff of the reason
for his arrest. The plaintiff sought damages for assault. Benne Ag. C.J. (Uganda) said:
"I am satisfied on a balance of probabilities, that Sergeant Aliangwa did go to the plaintiff's shop after the plaintiff had
refused to make a statement to Detective Constable Loumi; that because the plaintiff threatened Loumi, Aliangwa had
decided to arrest the plaintiff; that before he could do so and before he had laid hands on the plaintiff, the plaintiff
assaulted him and pulled him into the shop. I believe that Aliangwa and the other members of the police party were on
the defensive throughout, although no doubt they fought back in defending themselves against overwhelming odds. I am
satisfied that the plaintiffs injuries were sustained in this affray, while the police were lawfully defending themselves
against an unruly mob of whom the plaintiff was the leader. I am satisfied that, when Inspector Kasoro and his party of
police arrived on the scene, the plaintiff and his mob were actively engaged in attacking Sergeant Aliangwa and another
policeman.
In my judgment, Inspector Kasoro was justified in arresting the plaintiff. The plaintiff was not at that time lawfully
resisting an attempt to arrest him. As already indicated, I believe that the plaintiff resorted to violence before Sergeant
Aliangwa laid hands on him. One of the requirements of a lawful arrest at common law is that the person arrested should
be informed of the reason of his arrest: see Ciiristie v. Leachinsky [1947] A.C. 573 and Mwangi s/o Njeroge v. R. (1954) 21
E.A.C.A, 377 (K). There are two exceptions to this rule which are stated thus in speech of Viscount Sirnon in the English
cases:
1. The requirement that the person arrested should be informed of the reason
why he is seized naturally does not exist if the circumstances are such that
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he must know the general nature of the alleged offence for which he is
detained. ...
2. The person arrested cannot complain that he has not been supplied with
the above information as and when he should be, if he himself produces
the situation which makes it practically impossible to inform him, example by
immediate counter-attack or by running away.
In my judgment both these exceptions are applicable to the circumstances of the instant case. I find that the plaintiff's
arrest by Inspector Kasoro was lawful. The plaintiff's case is dismissed and he is ordered to pay the defendant's costs. "
Section 8. The arrestee is to be decently searched and all things found on him placed in safe custody.
Section 9. The arrestee must be taken with all reasonable despatch to a police station other place where the arrestee can
be taken and to be told, without delay of the cl t against him. The arrestee is to be given reasonable facilities for
obtaining legal advice taking steps to furnish bail and making arrangements for his defence or release
Section 14. Any private person arresting without warrant shall without unnecessary delay hand arrestee over to a police
officer/station or take him to nearest police station
Section 15. A person taken into custody without warrant shall be released not later 48 hours unless he is earlier brought
before a court. He can be bonded with or without sureties to appear before such court or police station or place and at
such time is stated in the bond.
As indicated at the beginning of this chapter, article 14 of Constitution 1992 1 provides rules for the tort of unlawful
arrest,
Article 14 of the Constitution, 1992 provides as follows::
"(1) Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in
the following cases and in accordance with procedure permitted by law—
(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; or
b) in execution of an order of a court punishing him for contempt of court; or
c) for the purpose of bringing him before a court in execution of an order of a court; or
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d) in the case of a person suffering from an infectious contagious disease, a person of unsound mind, a person addicted
to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community; or
e) for the purpose of the education or welfare of a person who has not attained the age of eighteen years; or
f) for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition
or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully
conveyed through Ghana in the course of his extradition or removal from one country to another; or
(g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of
Ghana.
(2) A person who is arrested, restricted or detained shall be informed

immediately in a language that he understands, of the reasons for his arrest,
restriction or detention and of his right to a lawyer of his choice.
(3) A person who is arrested, restricted or detained —
a) for the purpose of bringing him before a court in execution of an order of a court; or
b) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of
Ghana, and who is not released
shall be brought before a court within forty-eight hours after the arrest, restriction or detention.
4) Where a person arrested, restricted or detained, under paragraph (a) or (b) of clause 3 of this article is not tried
within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall
be released, either unconditionally or upon reasonable conditions, including in particular, conditions reasonably
necessary to ensure that he appeals at a later date for trial or for proceedings preliminary to trial.
5) A person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation
from that other person.
(6) Where, a person is convicted and sentenced to a term of imprisonment

for an offence, any period he has spent in lawful custody in respect of that offence
before the completion of his trial shall be taken into account in imposing the term
of imprisonment.
(7) Where a person who has served the whole or a part of his sentence is acquitted on appeal by a court, other than
the Supreme Court, the court may certify to the Supreme Court that the person acquitted be paid compensation; and the
Supreme Court may, upon examination of all the facts and the certificate of the court concerned, award such
compensation as it may think fit; or, where the acquittal is by the Supreme Court, it may order compensation to be paid
to the
person acquitted."
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False imprisonment
The tort seeks to protect a person's interest in freedom from physical restraint (i.e. protects freedom of movement) and
therefore the right to move about freely and apparently also the plaintiffs belief in this freedom. This right is also
protected by articles 14, 15, 21(l)(g); (2); (4); and (5) of the Constitution, 1992. As a trespass, the act which causes the
restrain must be direct and must be intentionally done by the defendant. Whether it can be negligently caused will be
dealt with later. Further. The act must cause the confinement of the plaintiff to an area delimited by the defendant.
False imprisonment is founded on two ingredients:
(a} imprisonment (b) absence of justification. "False" simply means erroneous, wrongful or unlawful and not
untruthful. "Imprisonment'' should not bring a prison to mind. The term is used loosely to denote a confinement any
place. Neither physical contact nor anything resembling
prison is necessary. Imprisonment has thus been said to be in:
"the restraint of a man's liberty, whether it be in the open field, or in the stocks or cage, or in the gaol. And, in all these
places, the party so restrained is said to be a prisoner, so long as he hath not his liberty freely to go at all times to all
places whither he will, without bail or main prize." Termes de la Ley.
Thus in Warner v. Riddiford,1 the defendant, a beer-house operator, employed the plaintiff to carry on his business at
weekly wages determinable, under the agreement, on a month's notice. The defendant gave the plaintiff a week's notice,
checked the accounts and asked the plaintiff to make up the difference. The plaintiff refused on the ground that he had
not been given the stipulated months’ notice. The defendant brought in two police officers. One of the officers, when the
plaintiff tried to go upstairs, refused to allow him to do so. Later, he was allowed to go accompanied. When he persisted
in refusing to make the difference, he was taken into custody and charged with embezzlement. He was discharged. The
plaintiff then brought the action for false imprisonment. The judge, in his direction to the jury, told them that they had to
consider three questions: whether there was any imprisonment by whom?; and any legal justification for it? on (1) he
told them:
"to constitute an imprisonment, it was not necessary that the person should be locked up within four walls, but that, if he
was restrained in his freedom of action by another that was an act of imprisonment, and that the way in which the
plaintiff had been constrained in his own house and the restraint put upon his person by refusing him permission to leave
the room and go upstairs in his own house, was in itself an imprisonment..."
On appeal, this direction was held to be a correct statement of the law.
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But the restraint in order to amount to imprisonment must be total. In other words, the person must be confined in all
directions. If it is only partial, leaving a reasonable means of escape, then no false imprisonment has occurred. A case in
point is Bird v. Jones?' In that case, the defendant blocked one side of the Hammersmith Bridge to form a grandstand for
a boat race, thus preventing the plaintiff's passage. The plaintiff refused to cross by the opposite path. It was held that
there was no false imprisonment because he had reasonable means of leaving. The plaintiff was not restrained in every
direction; therefore the restraint was not total. Another example is Wright v. Wilson: In this case, A's chamber adjoins to
B's chamber and has a door that opens into it by which there is a passage to go out. A has another door which C stops, so
that A cannot go out. It was held that there was no false imprisonment, because A may go out by the door in B's
chamber. He will be a trespasser, but can sue C in an action on the case. C.J. Holt stated that an auction in false
imprisonment will fail when a man has two doors through which he can go out and one is blocked, leaving the other free,
though the second one, he can go through only as a trespasser, But an escape route which exposes A to danger is
unreasonable and amounts to false imprisonment.
This decision raises the following question: What do we mean by the means of escape being unreasonable. For example,
let us look at a few examples:
a) A is in a pool naked. B steals his clothes. Is it false imprisonment, if A is thereby compelled to remain in the pool? Or,
is it reasonable that he can come out of the water naked? See Sayers v. Harlow Urban D.C
b) A turns a key on someone in a room on the ground floor with windows.
c) Same facts as in (b) except that the room is at the top of a skyscraper with windows open.
a) A parks his car in a parking lot blocking B, who then misses an important business meeting.
b) A drains petrol from B's car to prevent B from driving away.
c) Can a person refused a passport so that he cannot travel outside sue for false imprisonment? Is he or she imprisoned
at all?
Merely to fail to facilitate the departure of a person from one's premises does not amount to false imprisonment. In
Herd v. Weardale Steel, Coal and Coke Coy., a miner went down into the defendant's coal mine on the agreement that he
would work for a fixed time and, at the expiration of that time, he would conveyed to the surface by means of machinery
supplied by the employers. He stopped work earlier in breach of his contract and demanded to be conveyed to the
surface at once. The employers refused and he remained in the mine till the agreed closing time. In an action for false
imprisonment, it was held that he had no cause of action because the miner had no right to use the machinery whenever
he wants. Therefore, for the period he remained in the mine till the end of his regular shift, he had not, in law, been
imprisoned. So if A enters a train or a bus, the doors are locked and it stops only at certain points, if it stops for some
reason in between, A cannot demand to be allowed go out there. If he demands and is refused, this is no false
imprisonment.
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Again in Robinson v. Balmain New Ferry Coy Ltd.,' the defendants-respondents carry on and operate the business of a
harbour steam ferry between Sydney and Balmain. They had a wharf on the Sydney side of the ferry and you had to enter
by a turnstile and go out by another if you want. The appellant entered the wharf intending to cross to Balmain by one of
the steamers. Discovering that the next steamer would come in twenty minutes time, he decided to leave but refused to
pay the toll at the exit turnstile (one penny). After some struggle, he succeeded in leaving. He brought an action for false
imprisonment; judgment was given against the company. It appealed and succeeded. On further appeal by the appellant
to the Privy Council, it was held that the toll imposed was reasonable, so no liability in false imprisonment. It was held
further that failure to provide gratuitous exit from the premises to the appellant did not constitute false imprisonment.
From this case we can conclude that a passenger on a tro tro; train, plane etc. cannot demand to get off at an
unscheduled point. However, this case must not be treated as implying that you can detain people to enforce a contract.
In Sunbolf v. Alford the defendant innkeeper detained the plaintiff-customer for not paying his bill. It was held to be false
imprisonment.
False imprisonment can thus take place-anywhere — in the plaintiffs own house, in the mine, on a bridge or highway.
Wherever the place, the requirements are that the plaintiff should be totally restrained in a place whose boundaries are
delimited by the defendant.
Imprisonment can result from words or acts or both. So consider the following two situations: (a) A visits the boyfriend B
at his apartment; then informs B that their affair is over. B starts screaming and threatening to create a scene, if A leaves
the apartment. This goes on for ten minutes. False imprisonment? (b) A points a loaded gun at B and says "Don't move"
— False imprisonment?
Must the plaintiff be aware of the restraint to succeed?
Two cases generally considered as stating two different positions on this point may be discussed here. In the first case,
Herring v. Boyle, the plaintiff, suing by his next friend, was an infant of ten years. He was in the defendant's school during
holidays. When the school vacated, his mother came to take him home for a few days but the defendant refused saying
he would not let him go until some money owed to the school had been paid. He would not let the mother see the child
cither. After persistent demand and refusal, a writ of habeas corpus was taken out. The plaintiff was then released and
taken home by his mother. No proof was given that the plaintiff knew of the earlier denial to his mother; neither was
there any evidence of actual restraint on him. He also appeared to have enjoyed it. It was held that there was no false
imprisonment of the plaintiff.
The second case was Meeting v. Graham-White Aviation Co., per Warrington, L.J. and Lord Atkin, Lord Atkin took the view
that consciousness of the confinement was irrelevant to the question of false imprisonment. For the sake of the full
import of that case, the two opinions are reproduced here in full.
Warrington L.J.
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"This is an appeal by the defendants from a judgment delivered by Bray, J. after trial before himself with a special jury in
an action for false imprisonment and malicious prosecution. The jury found, speaking, for the moment, quite generally, in
the plaintiffs favour, both on the issues of false imprisonment and on the issues raised in the action for malicious
prosecution, and awarded the plaintiff 250/ damages in respect of false imprisonment, 1250l for malicious prosecution,
and an additional 200l, defending the plaintiff against the charge of larceny which had been preferred against him, and
which was the subject of the alleged malicious prosecution.
The defendant's appeal both in respect of the findings of the jury against them on the issues of false imprisonment and
on the findings of the jury and judgment of the learned judge on the issues raised by the action for malicious prosecution.
And they originally appealed against the award of the 200/ in respect of the father's costs of defending the plaintiff. But
that particular objection has been withdrawn. Therefore, if we are in the plaintiffs favour on the question of malicious
prosecution, the damages will stand as they were found by the jury — namely, 1250l, with the addition of 200l, for the
costs.
I propose to state generally, without going into the details of the evidence, the facts of this case, and then to take in
detail the questions asked of the jury and their answers, and see whether there was evidence on which the jury could
properly come to the conclusion that they did. It will then be necessary to see, having found those facts, whether the
learned judge in the court below was right in finding, as he had to find, that there was an absence of reasonable and
probable cause.
The plaintiff is an infant, and at the date of the occurrence in question he was between eighteen and nineteen years old.
He was employed at the Graham White aviation works, the aerodrome, at Hendon. His father was a merchant, carrying
on business in the City, and having a residence at Finchley, not far from the Hendon aerodrome. The boy had had 100l
premium paid for him by his father to the defendant company; he had obtained a pilot's certificate; and he had also, I
gather, acquired a considerable amount of experience as a mechanic in the company's works, so much so that at the time
of the occurrences in question he was designing an aeroplane of his own. Whether it was a good or a bad design is of no
consequence. But he was engaged in designing an aeroplane of his own. For that purpose he, of course, required a
certain amount of materials and tools of such a nature as were possessed by the defendant company. He applied to one
of the officials of the defendant company, a gentleman of the name of Liddle, as to the possibility of obtaining certain
materials and tools from the defendant company, and he was told there was a difficulty about it, but that he
might ,apply to Martin, who was the chief storekeeper of the defendant company and it wa possible that he might be
able to obtain at any rate some of the things he wanted
The plaintiffs home was with his father at Finchley. But inasmuch is h» being a pilot and instructor in the aviation school
at Hendon, sometimes found h necessary to be up quite early in the morning, he occupied a bedroom in a cottage called
Rose Cottage, occupied by a man named Lamb, the cottage being ,Wi outside the ground of the aerodrome. So matters
were with regard the plaintiff.
There had been for some considerable time extensive thefts of material and other things from the defendant company,
and those representing the defendant company were much exercised about the same, and were clearly very anxious to
stop it. On the 26th Jan. 1918 certain verbal statements were made by two pilots in the employ of the defendant
company, a man named Russell and a man named Somersfield, to one or more of the amateur police who were
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employed at the works, and who may be conveniently referred to as the works police. This was reported to the managing
director, and he desired to have their statements put in writing. They were put into writing. They consist of the two
statements dated the 28th January which have been so frequently referred to in the course of the argument before us.
The effect of those two statements - I do not propose to read them at length - seems to me to be that a certain keg of
varnish had been traced to the possession of the plaintiff, that it had been first placed in one of the hangars on the
aerodrome ground; that it had been removed by the plaintiff from that hangar to another; and that it had afterwards
been moved from the aerodrome ground altogether to Rose Cottage, and the persons who made the statements had
heard that it had been or was about to be taken from Rose Cottage to elsewhere
With that particular incident connected with the varnish there was associated in those statements the name of the
plaintiff, the name of Martin the storekeeper, and Mr. Brackenridge, who was the head of the school as I understand, or,
at any rate, a very important person in the aviation school and who it was said knew at all events all about the original
removal of the varnish to the hangar, although it was said that he had taken no notice of the incident.
The other matter which the two statements suggested was a supposed intimacy between Martin and the plaintiff. It was
said that they were in association; that die plaintiff had frequently taken Martin up for flights in hi aeroplane, and the
suggestion obviously was that Martin and die plaintiff were much too friendly with each other.
Having received those written statements, which, by the way arc addressed to Mr. Grahame-White, the managing
director of the company' Mr. Grahame-White, after consultation with the authorised police officer merely with his own
works' police, but the authorised officers of the Metropolian Police — decided on applying to the magistrate for a search
warrant. Application was made to the magistrate on an information which was sworn by Hutchins who was secretary of
the company. That information, which is dated the 30 Jan 19 is was in these terms: "During the past three months,
November, December, and January, a considerable quantity of aeroplane material comprising sheet steel brass bolts and
sockets, wood and fabric, also varnish and petrol have been stolen from the Grahame-White Aviation Company's works.
From information I have received in statement form and supplied to me by the police'' — by the police there he means
his own works' police "I have every reason to believe, and do believe, that considerable quantities of the said stolen
property have been taken to the address of one of the firm's assistant store-keepers, Charles Lamb, Rose Cottage,
Collindeeplane, Hendon. I respectfully ask that a search warrant be issued for the purpose of searching the said house."
At that time, so far as the facts of this case are concerned, the only thing that there was reason to believe had been taken
to Rose Cottage was the keg of varnish. That was the thing as to which the defendant company had the written
information. However, the magistrate granted the search warrant, and, in addition to it merely being a search warrant, it
authorised also the arrest of Lamb. The search warrant was placed in the hands of two detective officers of the
Metropolitan Police, Askew and Burgess, and on the 5th Feb. it was executed by them in the presence of officers of the
defendant company.
The result of that search was that there was found in the bedroom occupied by the plaintiff a bundle of things called
turnbuckles, about a dozen of them, and there was also found in the same bedroom a bundle of what are sometimes
called wire strainers and sometimes short ends. Both of them are connected with the construction of aeroplanes. There
was found in the drawer of the kitchen, with which, so far as I know, the plaintiff was not at all connected, two small coils
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of wire. In a chest in the stable, as to which it was not shown that the plaintiff had any connection whatsoever; they
found some more wire, and, what is most important of all, they found an inner tube with the defendant company's name
upon it, that tube belonging to the under-carriage of an aeroplane. They found also in this chest in the stable a varnish
brush and a piece of sheet brass, a small piece only, apparently part of what had been a larger piece, which was stamped
with the defendant company's identification mark, and which, no doubt, had been the property of the defendant
company.
Besides these articles the police found on the premises — and I understand in that pail of the premises with which the
plaintiff had to do — a number of tools and material connected with the manufacture of aeroplanes, but which things the
defendant company or the officers of the defendant company could not identify as theirs. They also found in the
bedroom occupied by plaintiff — and this is a matter of great importance — drawings and sketches of the aeroplane
which he was manufacturing.
The police having made their search arrested Lamb. They then inquired at what time it was likely that the plaintiff would
be back again at the cottage. He was not at the cottage at the time, nor, so far as we can see, was he upon the aerodrome
ground at the time. This was about six o'clock. They ascertained the address of his father. They were told that the plaintiff
himself would most likely be back at the aerodrome at about nine o'clock. They did not make any appointment with him,
but it was known — and this is of some importance — to the works' police that the two detectives, Askew and Burgess,
wished to question the plaintiff, and that they expected that he would be there about nine o'clock.
Hutch ins and Hickie — whose name I have not mentioned before, and who was the superintendent of the works' police
— with the two detectives then went off to the house of the plaintiff's father. What took place there I will leave for the
moment, because I wish to deal with what happened to the plaintiff.
Prudence, who was a sergeant of the works' police, had been told it was desired to interrogate the plaintiff at the
defendant company's offices, and that he was, when he came back, to inform of the fact, and see if he could, that he
should be at the defendant company's office for that purpose. Prudence interpreted and carried out his instructions in
this way. He told two of the company's police, a man named Dorry and a man named Liddington, to convey this
information to the plaintiff. Dorry and Liddington saw the plaintiff come out of the works and go across the field towards
this cottage. They say they saw him signal with an electric torch and receive an answer from the cottage. They then
started off, one way and one the other. Liddington went straight across the field towards that part of the hedge against
which was the curtilage of the hedge against which was the curtlings of the cottage. The other man went off to the left
and down a lane by a footpath which led in the same direction. But the point is that two men commissioned by a third to
convey a message to the plaintiff thought it necessary to do so in this extremely elaborate way.
Dorry got to the cottage asked for the plaintiff. He saw him and told him that his presence was desired up at the works,
and the plaintiff said: "All right, I will get my mackintosh and I will come along." So they started, and the plaintiff
suggested that they had better go a short cut through a place in the fence separating the aerodrome from the cottage,
and there was found the other constable, Liddington. They all three went up to the defendant company's offices
together. The plaintiff was taken or invited to go to the waiting room of the offices there to wait until he was wanted.
Prudence, Dorry, and Liddington were due to go off duty at eight o'clock in the evening. It was then past eight, and,
therefore, they were at liberty to go off duty. But they were told that it was desired that they should remain on duty until
the Metropolitan detectives had come back. They accordingly remained on duty, and they remained in the immediate
neighbourhood of the waiting room in which the plaintiff was.
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Meanwhile Prudence had communicated by telephone with the detectives and with Hickie and Hutchins who were in
their company that they had the plaintiff at the works. The detectives and Hickie therefore returned to the defendant
company's works, and one of them, in giving his evidence before the police magistrate, said that he there found the
plaintiff detained. The plaintiff had, however, when he was first taken to the waiting room, asked what he was there for,
what they wanted him for, and said that if they did not tell him he should go away. They then told him that what they
wanted him for was to make inquiries because there had been things stolen and he was wanted to give evidence. On that
statement he stayed. Askew and Burgess with Hickie then arrived at the defendant company's offices after the interview
that they had had with the plaintiffs father, and, therefore, for the moment I will leave what took place subsequently, and
consider what was the effect of what had already taken place with reference to the plaintiff and the question of his
imprisonment.
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The learned judge in the court below asked the jury this question in reference to it: "Had the plaintiff been detained in
the waiting-room before the detective and Hickie arrived?" Answer: "Yes." On behalf of the defendant company it was
contended before us that there was no evidence that the plaintiff had been detained in the waiting-room before the
detectives and Hickie arrived. They say that he was perfectly free to go where he liked, and that he knew he was free to
go where he liked, that he could have gone away if he pleased: he did not desire to go away, and, accordingly, that he
was never under any compulsion or under anything which could amount to an imprisonment. In my opinion there was
evidence on which the jury might properly come to the conclusion that from the moment that the plaintiff had come
under the influence of these two men, Dorry and Liddinglon, he was no longer a free man.
It was said by one of them, I think it was by Dorry, at the trial, that he was very anxious that the plaintiff should come
from the cottage to the works at the earliest moment, as he did not want him to be at the cottage and find out what had
taken place in the execution of the search warrant. I should be inclined to draw an inference in favour of the view which
the jury have expressed from the fact that when so simple a matter as sending a message down to the plaintiff that he
was wanted up there was concerned, that they should have taken the trouble to employ three people, a police sergeant
and two constables, to convey that message to the plaintiff. Then, again, that the message should be conveyed by the
two constables in the way in which it was conveyed; that one should go round one way and one should go another; that
one should approach the cottage by the lane and footpath, and that the oilier should approach it by the aviation grounds.
I cannot resist the conclusion that they meant to intercept the plaintiff.
Then they accompanied him together across the ground and when he was in the place the sergeant communicated with
the detectives, and told them that they had got him there. Having got him there, and having got him there with a view to
satisfying the desire of the detectives expressed before they left for Finchley, that they should have him there to
interrogate, can anybody believe that they were not keeping him there until the arrival of these detectives?
In addition to that is the fact that the other two constables Dorry and Liddington, and Sergeant Prudence as well, though
really entitled to go off duty, were kept there until the arrival of the detectives. Why were they kept there? What had
they to do? What had they to do if it was not intended in some way to restrict the movements of the plaintiff— I do not
mean to say at some future time to arrest him, but it was intended then to keep control over his will and over his
movements.
To my mind there was ample evidence justifying the conclusion to which the jury had come, agreeing in that respect with
Askew's own opinion, that the plaintiff had been detained by the officers of the company. If that had been so, then it is
admitted that that act was a wrongful imprisonment, because it was an imprisonment by a private person, and a private
person has not the privilege which a constable has of imprisoning a man on mere suspicion that a felony has been
committed. I think therefore that that was a correct finding of the jury, and that what they found was a false
imprisonment.
Then they were asked a further question: "Were the detectives when they formally arrested the plaintiff in the waiting-
room acting as agents and with the authority expressed or implied of the defendants?" They did arrest the plaintiff under
circumstances which I will mention directly when I come to that part of the case, because they bear more on the question
of malicious prosecution than upon the question of wrongful imprisonment. One of the detectives, Burgess, did in fact
arrest the plaintiff. Were they acting as agents, and with the authority, express or implied, of the defendants? The jury
answered that in the affirmative that they were. Now there, I think, the jury had no evidence on which they could
properly come to that conclusion. The evidence satisfies me, first, that Mr. Grahame-White, the managing director, left
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the question to Mr. Hutchins, the question as to what should be done with reference to the prosecution, and may be said
almost to have washed his hands of it as soon as he directed the application for the search warrant, and that Hutchins
and Hickie the works' superintendent of police, and the other two officers of the company, were quite alive to the fact
that, so far as the arrest was concerned at all events, they almost throw the responsibility upon the constables of the
Metropolitan Police.
I think that that evidence satisfies me that the officers of the defendant company did not give the plaintiff in charge, but
that in that matter the Metropolitan Police acted on their own responsibility, and by virtue of the powers which were
conferred upon them as police constables. That being so, the arrest of the plaintiff by them was not wrongful, because I
think that they had at the time they arrested him sufficient reasonable ground for suspecting that a felony had been
committed, and that the plaintiff had been involved in the commission of that felony. I think, therefore, that die arrest by
the Metropolitan Police was not wrongful, was made on their own responsibility, and not as agents of the defendant
company.
That being so, but for which Mr. Gregory has said on the plaintiffs behalf a very difficult question would be involved,
because the jury have made no distinction between the damages incurred by the false imprisonment which only lasted
something under an hour, and the subsequent formal arrest and its consequences. But Mr. Gregory, on the plaintiffs
behalf, has agreed that, there being no wrongful imprisonment by the arrest on the part of the police constables, the only
wrongful imprisonment being that by the officers of the company for a short time in the waiting-room, we may reduce
the damages awarded by the jury to a nominal sum. That accordingly I think ought to be done. That will dispose of the
question of wrongful imprisonment.
ATKIN L.J.
I think that we are obliged to take it that the issue as to false imprisonment raised on the pleadings was extended by the
assent of both parties to an allegation that the plaintiff had in fact been falsely imprisoned at the works of the defendants
before he was formally arrested by the detective sergeant. In respect of that it is said that that, after all, cannot be true
because the plaintiff himself never supposed that he was imprisoned at the time. He used language which indicated that
he was intending to go away if the persons who were proposing to see him and to take his evidence did not come soon.
Therefore it is said that inasmuch as the plaintiff did not know that he was being imprisoned it is not possible that there
could be evidence that he was imprisoned. I think that the case is important when that contention is to be dealt with,
because it seems to me upon a review of the possibilities of what is meant by imprisonment, that it is perfectly possible
for a person to be imprisoned in law without his knowing the fact and appreciating that he is imprisoned.
It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is
asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic. Those are cases where it
seems to me that the person might properly complain if he were imprisoned, though the imprisonment began and
ceased while he was in that state. Of course, the damages might be diminished and would be affected by the question
whether he was conscious of it or not.
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So a man might in fact, to my mind, be imprisoned by having the key of a door turned against him so that he is
imprisoned in a room in fact although he does not know that the key has been turned. It may be that he is being detained
in that room by persons who are anxious to make him believe that he is not in fact being imprisoned, and at the same
time, his captors outside that room may be boasting to persons that he is imprisoned, and it seems to me that if we were
to take the case as an instance supposing it could be proved that Prudence had said while the plaintiff was waiting: "I
have got him detained there waiting for the detective to come in and take him to prison" — it appears to me that would
be evidence of imprisonment. It is quite unnecessary to go on to show that in fact the man knew that he was imprisoned.
If a man can be imprisoned by having the key turned upon him without his knowledge, so he can be imprisoned if, instead
of a lock and key or bolts and bars, he is prevented from, in fact, exercising his liberty by guards and warders or
policemen. They serve the same purpose. Therefore it appears to me to be a question of fact. It is true that in all cases of
imprisonment so far as the law of civil liability is concerned that "stone walls do not a prison make," in the sense that
they are not the only form of imprisonment, but any restraint within defined bounds which is a restraint in fact may be an
imprisonment."
Article 14(5) of the Constitution, 1992 provides:
"Any person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation
therefore from that other person."
Does this statement imply a constitutional choice between the two contending schools of thought? Cf. Date-Bah " and
Veitch. " On balance, we are entitled to agree with Veitch that the provision is capable of supporting cither school. The
framers must be taken to have known the existence of the controversy but chose not to take sides. In the end, a better
reconciliation would be to treat the issue of consciousness as an award issue. If the plaintiff is aware, then he is entitled
to higher compensation. If not, nominal damages may be justified.
Problems relating to the requirement of directness
An arrest often involves or results in restraint on a person. An unlawful arrest therefore constitutes false imprisonment
e.g. I go to a police station on my own free will or at the invitation of an officer, then get arrested unlawfully — this is
false imprisonment]. Where A instigates the police to arrest B, if the arrest becomes unlawful, A is liable for false
imprisonment because it is the direct act of A, which caused the arrest in those circumstances. If, however, A informs the
police about a state of affairs, they institute their own investigations and arrest B, then there is no false imprisonment,
even if the arrest so effected is unlawful because the arrest docs not result from the direct act of A. It is not often easy to
make the distinction between informing and directing.
For the proper test here, see Thomas Bingham M.R. in Davidson v. Chief Constable:'
"Whether what [the informer] did went beyond laying information before police officers for them to lake such action as
they saw fit and amounted to some direction, or procuring, or direct request, or direct encouragement that they should
act by way of arresting...."
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In Onogen v. Leventis,the plaintiff was a store-keeper of the defendant company, in charge of the company's drinkables
and provisions store at Market Circle in Takoradi. It appeared that the company lost 70 cases of Heineken beer and the
general agent of the company informed the police. The plaintiff was arrested and detained for 26 hours before being
granted bail. Subsequently, he was prosecuted and was acquitted. He then brought an action for false imprisonment,
wrongful dismissal and malicious prosecution. Adumua-Bossman J (as he then was) quoted Salmond on Torts, (10th ed.),
at p. 374 with approval as follows:
"An action for false imprisonment will lie against any person who authorises or directs the unlawful arrest or detention of
the plaintiff by a merely ministerial officer of the law. ...
He makes that ministerial officer his agent and is responsible for any arrest or detention so procured or authorised, as if it
were his act. It is necessary, however, even in such a case to prove actual direction or authorisation, such as is sufficient
to make the ministerial officer the agent of the defendant. Mere information given to such an officer, on which he acts at
his own discretion, is no ground of liability. So no false imprisonment."
But in Austin v. Dowling, the plaintiff was a lodger in the defendant's premises. It appeared he owed some money, was
sued and paid. But he still owed a small sum. One day, when he returned to his lodgings, he discovered that the drawers
in his bedroom had been emptied and his private cupboards and their contents removed. He went to report at Clifton
Police Station and was accompanied back at his request by a police officer. At the house the plaintiff demanded from the
defendant's wife his property and was refused. The plaintiff went upstairs, broke the door of a bed-room in the
defendant's house occupied by another lodger with his shoulders and a screw-driver.
When he returned downstairs, the defendant's wife handed the plaintiff over to the police for the felony of breaking
open the door. He was taken into custody and walked lo the police station. After hearing the circumstances of the case,
the inspector in charge declined to detain the plaintiff unless the defendant signed the charge sheet. The defendant
signed the charge sheet. The plaintiff was charged with "feloniously breaking and entering into a bed-room" in the
defendant's house. The plaintiff was detained for 171/2 hours before being brought before magistrates where he was
discharged. He brought action for false imprisonment and malicious prosecution and was non-suiled. He appealed. Willes
J, Keating J, and Montague Smith J said there was evidence of false imprisonment because, signing the charge sheet after
police say: no detention unless so signed, amounts to authorising the police to imprison the plaintiff— it was the doing of
an act which caused the plaintiff to be kept in custody.
This case must be distinguished from a situation where A offers the police mere assistance to do their work. Thus in
Nkrumah v. Foli. It was held that accompany the police to point out the plaintiff to them is not instigation. Again in
Amadjei v. Opoku Ware, ' two policemen on patrol duty were told by the respondents that A,B,C,D and E were holding an
unlawful meeting and should be arrested. When the police were interviewing the appellant, the respondents came and
ordered their arrest, whereupon one policeman said "You are arrested." The plaintiff brought the action for false
imprisonment. The high Court dismissed the action. Upon appeal, it was held that the facts disclosed authorisation by the
respondents of the appellants' arrest and unlawful detention. So it amounts to false imprisonment and the appeal was
allowed.
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So where a complainant gives information to a police officer, and the officer acts according to his own judgment and
makes an arrest, the complainant incurs no liability for false imprisonment. But where the complainant does not merely
give information but directs the officer lo effect the arrest, the officer in that case is considered as the servant of the
complainant and the complainant will be liable for false imprisonment — Narwu v. Armah.
The situation will not be different where the information given by A to the police is to his knowledge false. Musa v. Limo-
Wulana20 shows where the information given by A to the police is to his knowledge false, an action in false imprisonment
will lie:
(a) Is the law looking for intention to imprison or intention to do the act leading to imprisonment? In Warner v.
Riddiford, it was held that the relevant consideration was intention to do the act which causes or results in the
imprisonment,
(b) Can the false imprisonment be committed negligently? Sayer's case suggests only intentionally.
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Malicious prosecution
The tort seeks to protect two conflicting interests:
a) On one hand, social policy demands that criminals are prosecuted, and again that individuals be free to help in this
exercise.
b) On the other hand, it is equally important that the individual's freedom from unnecessary arrest and prosecution
should be protected.
NB: In false imprisonment, the assumption is that the defendant departed from due process. In malicious prosecution, it
is assumed the process is regular but has been perverted.
NB: For purposes of limitation, time does not start to run in an action for malicious prosecution until the plaintiff s
acquittal
According to the decision in Musa v. Limo-Wulana (discussed below), to succeed the plaintiff must prove five elements
namely:
(a) that the defend initiated a prosecution against him
(b) that the criminal proceedings terminated in the plaintiff's favour
c) that the defendant undertook or instigated or procured the prosecution; with no reasonable or probable cause;
d) that the defendant acted maliciously; and
e) that the plaint If suffered damage as a result of the prosecution.
We shall take these elements seriatim.
(1) Proof of prosecution by the defendant
The plaintiff must prove that he has been prosecuted by the defendant. This means proof either that: (a) the defendant
himself conducted the prosecution; or (b) procured, instigated, directed, ordered or was actively instrumental in the
prosecution being set in motion. This requirement may be illustrated by the decision in Soadwah v. Obeng. The appellant
had, in a letter to the police, complained that the respondents had broken into his room and stolen his properties while
he was away from home. He, in writing the letter, supported by affidavit, had relied on information given him by his son
and^ uncle. He called for immediate investigation and police action. The police conducted their investigation. The
investigation officer advised against prosecution, but his superior, the Assistant Commissioner of Police of Sunyani,
37 | P a g e
thought otherwise and ordered a prosecution. The prosecution of the respondents on stealing from the appellants' home
ended in their acquittal and discharge. Thereupon, the respondents brought an action in the High Court Sunyani against
the appellant for malicious prosecution. The trial judge, concluding that the appellant "was instrumental in putting the
law in force and instigated the prosecution," found for the respondents. The appellants appealed. It was held, allowing
the appeal, that the respondent had failed to prove as the evidence clearly showed, that it was the appellants and not the
police who initiated the prosecution.
The requirement is therefore that the plaintiff must establish that the defendant actively instigated the prosecution or
was instrumental in getting the proceedings going. If the defendant merely reported the matter to the police who do
their own investigations before charging the plaintiff, the defendant is not liable as in Soadwah v. Obeng. The point is
further brought out by the case of Danby v. Beardsley. The plaintiff had been in the service of the defendant (doctor) as
groom and gardener and left. While gardener, he lent to his successor two pairs of horse-clipping machines to clip the
horses. When he resigned, he took them away. The defendant who had seen the machines in his stables thought they
were his. When he did not see them again, he asked his groom about them and was told the plaintiff had taken them
away, and that they belonged to the plaintiff. Nevertheless, the defendant sent for the police. He told them he had lost
two pairs of clippers and that they had last been seen with the plaintiff. The police made further inquiry and also
searched the plaintiff and found two pairs of clippers similar to the ones supposedly lost. Without further communication
the defendant, police arrested the plaintiff and charged him with the offence. In an action, for false imprisonment and
malicious prosecution by the plaintiff, it was held that malicious prosecution must fail because there was no evidence
that the defendant had been instrumental in putting the criminal law into force and therefore was not the prosecutor.
We may also recall that in Onogen v. Leventis,3 the employers were held not to have actively instigated the arrest and
therefore were not liable for malicious prosecution.
If you knowingly make a false complaint which results in A being prosecuted, the first requirement is satisfied. In Musa v.
Limo-Wulana,the appellant made a complaint against the defendants that they had been unlawfully fishing in the village
dam, the only source of drinking water for the village. They were acquitted and discharged and brought action. No
evidence was led by the appellant on whether they suffered damage. The Court of Appeal restated the five requirements
which a plaintiff for malicious prosecution must prove to succeed. On damage, the Court of Appeal quoted Saville v.
Roberts with
approval. But to go with the police to point a person out is not to prosecute him: see Nkrumah v. Foli. But where the
informant lies to obtain the prosecution there is malicious prosecution. In Martin v. Watson, the House of Lords held that
an informant who falsely and maliciously gives information to the police can be said to have initiated prosecution for
purposes of malicious prosecution. See also Walters v. Pacific Delivery Services Ltd.
The prosecution which is the basis of a malicious prosecution action must be a criminal prosecution. But note the
exception where bankruptcy and winding up proceedings which are civil actions were held sufficient to support an action
in malicious prosecution. The case is Quartz Hill Mining Co. v. Eyre. In this case, the defendant, a shareholder of the
plaintiff's company, instructed brokers to sell his shares, and signed a transfer. Later, the brokers told him they were
finding it difficult to sell the shares but they did not transfer them back to the defendant. After waiting for ten or eleven
days, he brought a petition for the winding up of the company on the grounds that there was fraud in the formation of
the company and also that it could not carry on business for profit. At that time, the company had property of a large
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amount and its debts were insignificant. The defendant had also ceased to be a shareholder, his shares having been sold
by the brokers unknown to him. When he discovered his shares had been sold, he gave notice to withdraw the petition
which was ultimately dismissed without costs. The company sued him for falsely and maliciously and without reasonable
and probable cause bringing the petition.
At the trial, no proof of damage to the company was given beyond the costs of defending itself against the petition and
upon this ground the company's action was dismissed. On appeal, it was held that malicious prosecution would lie
because the petition was injurious to the credit of the company. There was want of reasonable and probable cause since
it was a going concern contrary to the petitioner's claims; so the jury ought to have been asked whether the petitioner
was actuated by malice. Here an action which is normally civil was allowed to support a suit in malicious prosecution
because apparently its effect on the company was similar to that of a criminal prosecution
2.
Termination in the plaintiff's favour
This element means that the plaintiff must have been acquitted and discharged of the offence. This is because the tort
relies on termination, in the plaintiff's favour, of the criminal proceedings. For this reason, it is irrelevant whether the
conviction is one against which there is no right of appeal or one which has been obtained by the fraud of the prosecutor.
The last point is illustrated by the decision in Base-Be v. Mathews. Here the plaintiff alleged that the defendant falsely
and maliciously and without reasonable and probable cause, initiated prosecution against the plaintiff before a justice of
peace, where he was charged with assaulting and beating her and was convicted, fined and costs were awarded against
him, there being no appeal from the said conviction. It was held that the rule that, for a plaintiff to succeed in an action in
malicious prosecution, he must show that the criminal prosecution terminated in his favour applies even to convictions
for which there was no appeal.
Termination in his favour also means that the plaintiff was not convicted of the particular offence preferred against him.
If convicted of a lesser offence, proceedings have terminated in his favour, e.g. manslaughter for murder or dishonestly
receiving for stealing. The authority is Boaler v. Holder.11 In that case, the plaintiff was indicted under section 4 of the
Newspaper Libel Act for publishing a libel knowing it to be false. He was committed for trial. At the trial, the jury found
him guilty of publishing die libel, but found that he did. not know it was false. This, in fact, amounted to a verdict of not
guilty. But the plaintiff was sentenced to a term of imprisonment. On his release, he brought an action for malicious
prosecution against the defendant. The judge withdrew the case from the jury, when it was shown that the plaintiff had
been convicted. On appeal, Day J decided that there should be a new trial, because the plaintiff who had been charged
with the graver offence under section 4 had been convicted of the lesser offence under section 5. This conviction was no
bar to an action for malicious prosecution under section 4. Wills J concurred. He pointed out that the plaintiff had not
been convicted of the offence for which he was put on his trial. He noted that to put a man on his trial for a much graver
offence than you have any chance of convicting him is a legal wrong. In his view therefore the plaintiff had made out that
he had been put on his trial wantonly and that there was an absence of reasonable and probable cause for the actual
charge brought against him.
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But where a plaintiff is bound to be of good behaviour, that is fatal to malicious prosecution. Where he or she is convicted
in a court of first instance but acquitted on appeal that is termination in his favour.
An entry of nolle prosequi by the Attorney-General, as he may be entitled to do under article 88 of the Constitution,
1992, or an officer lawfully authorised by him is termination in the plaintiffs favour, although nolle prosequi carries with it
liberty to prosecute on the same facts and charge later. Before 1963, our law which followed the English law, was not
clear on the matter. For, in England, it was the law that entry of nolle prosequi was not sufficient termination in the
plaintiffs favour — Goddard v. Smith.12 But, it was held in an Australian case that it was: Gilchrist v. Gardener}3 Our law
became saddled with these two conflicting positions.
The West African Court of Appeal preferred the Australian view in Malek Khoury v. Tabbara. In this case, the plaintiff-
appellant brought the action for malicious prosecution against the respondent-defendant for maliciously and without
reasonable and probable cause preferring against him, a charge of obtaining by false pretences a sum of money. He
averred that the proceedings were terminated when the Solicitor-General entered a nolle prosequi. He asserted that this
satisfied the requirement, for malicious prosecution, of termination in the plaintiff's favour of the prosecution. The
learned trial judge felt himself bound by Goddard v. Smith, to dismiss the action and the plaintiff appealed. It was held,
relying on the alternative Australian case of Gilchrist v. Gardener that the appeal should be allowed. Foster-Sutton P
(concurred in by Coussey J.A. and Kingsley J as they then were) said he preferred the reasoning in the latter case to the
earlier one, as an exception to the general rule that, in a malicious prosecution action, the plaintiff must prove
termination of criminal proceedings in his favour.
The situation remained uncertain until 1963, when the Supreme Court settled the issue in Nana Akuamoah Boateng v.
Yeboah.15 In that case, the appellants had been successfully sued in the High Court, Accra. They appealed to the
Supreme Court on two main grounds: (a) They had reasonable and probable cause for the prosecution, and (b) they had
acted without malice. The facts were that the respondent was the Omanhene of Kwahu. He lodged a complaint against
the appellants that they had paid dues to the Adontenhene of Abetifi without his consent. An arbitration presided over
by the Krontihene was held. The arbitration found the appellants wrong, and they apologised to the Omanhene. They
paid pacification fees in accordance with custom and also provided some drinks (schnapps). Then the appellants
complained to the police that the respondent had extorted money from them. The police refused to take any action, as
they felt that the complaint disclosed nothing criminal. The appellants instituted a private prosecution in the district
magistrate's court. That court found that a prima facie case had been made out and committed the respondent to stand
trial. The Attorney-General subsequently entered a nolle prosequi. After that, the respondent instituted this action
against which appellants appealed. The appeal was dismissed. The Court of Appeal was of the view that, having regard to
the circumstances, malicious prosecution had been made out. The appellants knew that all that had happened was the
application of customary law, so the respondent had not extorted the money. Even though the prosecution was after
counsel's advice and was in fact conducted by counsel, yet the fact that counsel was not told of the arbitration, the fact
that they were found guilty by the said arbitration and the moneys paid were for pacification, rendered the involvement
of counsel worthless. So, on the evidence, it was reasonable to conclude that there was want of reasonable and probable
cause from which, in the circumstances an inference of malice could be made. On damage, the Court of Appeal held that
the prosecution damaged the fame and reputation of the respondent.
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3. Absence of reasonable and probable cause
The plaintiff must prove that the defendant prosecuted him without reasonable and probable cause. The plaintiff may
establish this in one of two ways. By showing that:
a) the prosecutor (whether the defendant himself or herself or a surrogate in law) had no honest belief in the plaintiff's
probable guilt when he prosecuted him; or
b) the prosecutor had such belief but that the facts would not lead an ordinarily prudent and cautious person to that
conclusion, i.e. the plaintiff was rash in his judgment.
Reasonable and probable cause was explained in Hicks v. Faulkner.16 The defendant was the landlord of a house in the
Belgrave Road, St. John's Wood. The father of the plaintiff was tenant of that house. In February 1879, the defendant
brought an action in the county court against the plaintiff's father for alleged arrears of rent. The father's defence was
that he had given up the premises before the alleged rent accrued. To support this claim, the father called the plaintiff
who swore that he had, at his father's request, given the key to the defendant. After that action, the defendant indicted
the plaintiff at the Central Criminal Court for perjury. The plaintiff was acquitted. He then brought a malicious prosecution
action against the defendant. Judgment was given in favour of the defendant. Subsequently the plaintiff obtained a rule
nisi for a new trial (i.e. the plaintiff appealed) on two grounds, namely that: (a) the judge misdirected the jury; and (b) the
verdict was against the weight of evidence. Now the disputed direction was as follows:
"The judge told the jury alternatively that if they could not arrive at a conclusion as to which of the parties was speaking
the truth, the plaintiff had not made out his case and defendant was entitled to judgment; if they thought that the
plaintiff did give up the key but the defendant, owing to a defective memory, had forgotten the occurrence and went on
with the prosecution honestly believing that the plaintiff had sworn falsely and corruptly, then the jury would not be
justified in saying that the defendant maliciously and without reasonable and probable cause prosecuted plaintiff, and
defendant would be entitled to judgment."
The rule was discharged on the grounds that this direction was right (i.e. the appeal failed).
Hawkins J in this case provides us with a definition of reasonable and probable cause which has been approved and used
by many courts in the common law world ad infinitum:
"An honest belief in the guilt of the accused based upon full conviction, founded upon reasonable grounds, of the
existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and
cautious (i.e. one not RASH) man, placed in the position of the accuser, to the conclusion that the person charged was
probably guilty of the crime imputed. There must be: first an honest belief of the accuser in the guilt of the accused;
Secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser
to that conclusion; Thirdly, such secondly-mentioned belief must be based upon reasonable grounds; by this I mean such
grounds as would lead any fairly cautious man in the defendant's situation so to believe; Fourthly, the circumstances so
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believed and relied on by the accuser must be such as amount to reasonable ground for the belief in the guilt of the
accused. ..."
Turning to the facts of the case before the court, he posed the following rhetorical question:
"If a man has never had reason to doubt, but on the contrary, has ever had reason to trust the general accuracy of his
memory, and that memory presents to him a vivid apparent recollection that a particular offence took place in his
presence within a recent period of time, is it not reasonable to believe in the existence of it?"
NB: This does not mean that the accuser is always justified in relying on his memory or the trustworthy statement of an
informant. At all times, the question will be whether it was reasonable to do so. So it will be unreasonable to rely on a
memory known to be unreliable or an untrustworthy informant.
From Hawkins J definition, it is clear that reasonable and probable cause depends on or has two elements namely,
a) facts (objective aspect of the test); and
b) the genuineness of the defendant's belief based on them (the subjective aspect).
In the case of (a), the relevant facts are those known to the defendant at the time the prosecution was initiated i.e. he
cannot avoid liability by pointing to facts showing that the plaintiff was guilty, if these were not known to him until later:
see Delegal v. Highley
In the case of (b), the question is: Did the defendant honestly believe in the plaintiffs guilt or not; nor did he honestly
believe that there was reasonable and probable cause. This is because the existence of reasonable and probable cause is
a question of law for the judge, as was held in Glinski v. Mclver. The defendant's knowledge of facts negativing the
plaintiff's guilt is relevant to the honesty of his belief.
Another relevant consideration is taking legal advice: Abbott's Case; see Boateng v. Yeboah.These last two cases decided
that provided counsel is fully briefed and apprised of the full facts, the interposition of legal advice before the
prosecution will absolve the defendant of liability. In other words, the advice will meet the reasonable and probable test.
Conviction at first instance may not be conclusive evidence of reasonable and probable cause where quashed on appeal
— for the conviction may have been procured by perjured evidence.
Hawkin's definition was adopted by the House of Lords in Herniinan v. Smith and also by the Ghana Court of Appeal in
Yeboah v. Boateng. In Herniinan v. Smith, the plaintiff, together with one Richard, was charged with conspiracy to
defraud the defendant and with obtaining money from him by false pretences on four different occasions. They were
convicted at first instance trial and sentenced each to twelve months' imprisonment. The conviction and sentence were
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set aside by the Court of Criminal Appeal. The court felt that there was not sufficient evidence in the case of the plaintiff
to go to the jury and that, in the circumstances, it would be safer to quash die conviction of Richard as well. Thereafter,
the plaintiff brought an action for malicious prosecution against the defendant. The case was tried by Talbot J and a
common jury and judgment was entered for the defendant. The judge had left the following three questions to the jury,
which they answered in the affirmative:
1) Has it been proved that the defendant commenced and proceeded with the prosecution without any honest belief
that the plaintiff was guilty of fraud?
2) Has it been proved that the defendant failed or neglected to take reasonable care to inform himself of the true facts
before commencing or proceeding with the prosecution?
(3) Has it been proved that the defendant, in commencing or proceeding with the prosecution, was actuated by motives
other than a desire to bring to justice one whom he honestly believed to be guilty? The jury answered all three questions
in the affirmative.
The judge held that there was no reasonable and probable cause for the prosecution and entered judgment for the
plaintiff. The defendant appealed and the Court of Appeal set aside the judgment of the court of first instance. The Court
of Appeal was of the view that the evidence did not justify the learned judge leaving the first two questions to the jury. In
their opinion, there was no want of reasonable and probable cause.
The plaintiff appealed to the House of Lords. The House of Lords, per Lord Atkin, approved Hawkins J's definition of
reasonable and probable cause — Hicks v. Faulkner23. But Lord Atkin disagreed with Hawkins J's statement in the above
case that the reasonableness of the accuser's belief in the existence of the facts on which he acted was a question of fact
for the jury. Lord Atkin also felt that the additional question of whether the facts so believed amount to reasonable cause
for believing the accused to be guilty was also one for the judge, i.e. it was a question of law. Given that view, he agreed
with the Court of Appeal that there was no want of reasonable and probable cause for the prosecution. He continued
thus:
"... It was further said that he should have asked for a further explanation from Hemiman. No doubt circumstances may
exist in which it is right before charging a man with misconduct to ask him for an explanation. But certainly there can be
no general rule laid down, and where a man is satisfied, or has apparently sufficient evidence, that in fact he has been
cheated, there is no obligation to call on the cheat and ask for an explanation which may only have the effect of causing
material evidence to disappear or be manufactured. It is not required of any prosecutor that he must have tested every
possible relevant fact before he takes his action. His duty is not to ascertain whether there is a defence, but whether
there is reasonable and probable cause for a prosecution. ..."
The requirement of reasonable and probable cause was further explained in Glinski v. Mclver. In this case on 13
September 1955, defendant, a Criminal Investigation Department detective sergeant, arrested the plaintiff, believing him
to be involved in a series of frauds on textile manufacturing houses and going under a different name (Davies). The
plaintiff was not picked out at an identification parade as the man known as Davies and was subsequently released. On
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September 21, 1955 a solicitor working with the legal department of the New Scotland Yard delivered to counsel a brief
for the prosecution of certain persons and also advise on "Glinski aspect of the matter." On 22 September, the plaintiff
gave evidence for the defence at a criminal trial. The police believed he had, at that trial, perjured himself. The solicitor
after consultation with counsel (the defendant was present), issued a warrant for the arrest of the plaintiff and charged
him with conspiracy to defraud. The plaintiff alleged that the defendant told him he was being tried for giving evidence at
ihe oilier trial. He was tried on the conspiracy charge and acquitted. He sued the defendant for damages for false
imprisonment and malicious prosecution. The judge put the following questions to the jury on the malicious prosecution
action:
a) Has it been proved that the police officer, in starting the prosecution of the appellant for conspiracy to defraud was
actuated by malice, that is, any motive or motives oilier than a desire to bring the appellant to justice? Yes.
b) Did the police officer honestly believe on the relevant date (29 September) that the appellant was guilty of the
offence of conspiracy to defraud? No.
The judge decided there was no reasonable and probable cause for the prosecution. The defendant appealed to the
Court of Appeal which allowed the appeal. The plaintiff then appealed to the House of Lords. It was held, dismissing the
appeal, that:
(1) The second question should not have been left to the jury because, though it is the law that malice can, in appropriate
cases, be inferred from an absence of reasonable and probable cause for prosecution, it is also the law that want of
reasonable and probable cause should be established by itself and should not be inferred from the existence of malice.
Per Viscount Simonds:
"A prosecutor who relies on competent legal advice cannot be said to lack reasonable and probable cause for a
prosecution just as a prosecutor is justified in acting on information about facts given him by a reliable witness."
Lord Denning thought that the word "guilty" in Hawkin J's definition could be misleading. All that a prosecutor must
satisfy himself on is whether there is a proper case to lay before a court. He is concerned to bring every man who should
be put before court, but he is not concerned to convict him.
4. Malice:
The plaintiff must prove that the defendant was actuated by malice in prosecuting him. Malice covers not only spite and
ill-will but also any motive other than a desire to bring a criminal to justice. According to Lord Devlin in Glinski v. Mclyer,
malice relates to the prosecutor's motive. This means that the prosecution must have been with ill-will or spite.
Prosecution of the plaintiff on any motive other than bringing him to justice is malice.
Thus to succeed in an action for malicious prosecution, as Weir notes26 the plaintiff must show that the defendant was
both a knave and a fool. The performance of a duty required by law cannot evidence malice — Abbots case. See Lord
Devlin in Glinski v. Mclver where the defendant prosecutes with two motives, i.e. one genuine, one malicious; the court
has to determine which motive predominated in the making of the decision to prosecute in order to decide whether an
action in malicious prosecution will lie.
5. Damage
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Being an action on the case, the plaintiff must prove damage as a result of the prosecution to succeed. Chief Justice Holt
laid down the heads of damage recognised under this tort in the case of Saville v. Roberts.21 Here the plaintiff alleged
that the defendant maliciously and wickedly, intending to oppress the plaintiff, caused him to be maliciously indicted of a
riot. And that he was acquitted. He alleged injury was caused to his name and he was put to expenses in defending
himself. Chief Justice Holt held that there are three sorts of damages, any one of which is sufficient to support the action.
a) damage to his name, (i.e. necessarily and naturally affects the fair fame of the person) if he is accused of scandalous
matter;
b) damage to his person where he could lose his life, or liberty (if he is, for example, imprisoned); and
c) damage to his property, if he is made to incur charges and expenses for his defence.
See on head I - Akuamoah Boateng v. Yeboah; Gyimah v. Donkor cf. Wiffen v. Bailey and Berry v. B. T. C29.
What amounts to damage on point (c) was explained in Wiffen v. Bailey.30 In that case the plaintiff, as occupier, was
asked to clean certain rooms in his house considered dirty. When he failed to do this, Bailey, acting on die instructions of
the defendant counsel, preferred a complaint before the Romford Justices. At the hearing, the justices dismissed the
complaint and awarded the defendant costs. The plaintiff in the trial had, in defending himself, incurred further costs. He
brought the present action for malicious prosecution against defendants. At the hearing, the jury found that the
defendants were actuated by malice in bringing the complaint and the judge ruled that there was no reasonable and
probable cause. The defendants appealed. It was held that the difference between solicitor and client costs and party and
party costs was not legal damage for purposes of an action in malicious prosecution. So the appeal was allowed (Coram:
Buckley, Phillimore, and Pickford, L.J.J.). The court felt that there was no damage within the heads of damage listed by
Chief Justice Holt in Savillle v. Roberts, to support an action in malicious prosecution.
But in Berry v. B.T.C., the plaintiff pulled the communications cord, while travelling on a train between Brighton and
Lancing. He was charged with a breach of section 12 of the Regulation of Railways Act, 1865, convicted and fined. On
appeal, her conviction was quashed and she was awarded fifteen guineas costs. She brought an action for malicious
prosecution claiming, inter alia, that, by reason of the charge, she had been injured in her reputation and had been held
up in ridicule and suffered pain of mind, and had been put to expense in defending herself. The defendants put up the
defence that the statement of claim disclosed no damage of which the plaintiff was entitled to complain at law and thus
disclosed no cause of action. Diplock J. upheld the defendant's contention and dismissed the claim with costs. The
plaintiff appealed on the ground that the judge misdirected himself both in substance and in law. It was held, allowing the
appeal, that the expenses incurred by the plaintiff in the course of her defence in the court of summary trial and before
the recorder, over and above the sum of 15 guineas awarded her, were sufficient to support an action for malicious
prosecution (£64 2s, £29 17s). Thus, a distinction was drawn between the position in respect of criminal proceedings and
civil proceedings.
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The rule in Wilkinson v. Downton
The rule created an action on the case for intentional infliction of physical harm by indirect means. Briefly put, it states
that any act done wilfully, calculated to cause and actually,causing physical harm to another (per Wright in Janvier v.
Sweeney) is an actionable wrong,
Elements
These are:
a) a deliberate or wilful act or misrepresentation;
b) calculated to cause harm to the plaintiff; and
c) actually causing harm to the plaintiff.
The locus classicus is Wilkinson v. Downton. In that case, the defendant in the execution of a practical joke, falsely told
plaintiff that her husband had asked him to tell her that he had been injured in an accident with both legs broken and
that she was to go at once in a cab to get him. She suffered a nervous shock, vomiting and other physical consequences.
She spent a large sum on medical expenses as a result. The consequences were not in any way the result of previous ill-
health; for she was in ordinary state of health and mind. It was held that an action would lie to recover the expenses on
medical treatment, per Wright J:
"The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff
i.e. to infringe her legal right to personal safety, and has thereby in fact caused physical harm to her. That proposition,
without more, appears to me to state a good cause of action, there being no justification alleged for the act. This willful
injuria is in law malicious, although no malicious purpose to cause harm which was caused, nor any motive of spite, is
imputed to the defendant....
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One question is whether the defendant's act was so plainly calculated to produce some effect of the kind which was
produced, that an intention to produce it ought to be imputed to the defendant regard being had to the fact that (lie
effect was produced on a person proved to be in an ordinary stale of health and mind. I think that it was. It is difficult to
imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under
the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect
must be imputed, and it is no answer in law to say that more harm was done than anticipated, for that is commonly the
case with most wrongs. ..."
He continued with the following example:
"... Suppose that a person is in a precarious and dangerous condition, and another person falsely tells him that his
physician has said that he has but a day to live. In such a case if death ensued from the shock caused by the false
statement, I cannot doubt that the case might be one of criminal homicide; or that, if a serious aggravation of illness
ensued, damages might be recovered."
On the facts there was no precedent before 1875. The plaintiff could not have brought an action for trespass, which lay
only for the direct physical infliction of harm or threat of it. In this case, the plaintiff had been physically injured. But only
as a result of her mental shock following upon her belief in the words spoken. She could not have sued for this mental
suffering in the tort of deceit because of the absence of fraud and reliance. Here she was claiming for damages not for
reliance but for her mere belief in the truth of what the defendant said and the effect that belief had on her mind.
The rule was applied in Janvier v. Sweeney. In that case, the plaintiff was a maidservant; the defendants were detectives.
They wanted to read certain letters of the plaintiff's mistress. They represented to her that she was suspected of
collaborating with the Germans and, if she did not bring out the letters they would report her boy-friend to the
authorities as a traitor and have her deported. The plaintiff fell ill, and had nervous shock. The court held that the act of
the defendant was wilful and aimed at causing harm under the rule in Wilkinson v. Downton.
Two other cases may be considered. The first is Burnett v. George:4 The plaintiff was subjected to harassment by
unwelcome phone calls. The rule in Wilkinson v. Downton was thought to be applicable but the plaintiff failed because
she could not prove any damage, i.e. impairment to her health.
The second is Khorasandjian v. Bush: This was a case of harassment by phone calls. The plaintiff succeeded on the
Wilkinson v Downton principles because of the risk that the cumulative effect of continued and unrestrained phone calls
would cause physical or psychiatric illness.
In the recent case of D v. National Society for the Prevention of Cruelty to Children6 in which Lord Denning was unwilling
to extend the principle, the defendants had information that die plaintiff was maltreating her child. They sent an officer
to investigate. The information was false and the plaintiff was severely shocked by the experience. The issue was whether
the defendants were bound to disclose the identity of their informant; but disclosure here depended on whether there
was a claim against the defendants on the facts in the first instance. In the end, it was decided that disclosure must be
refused on public interest grounds and therefore there was no claim against the defendants.
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Intentional interference with property
TRESPASS TO LAND (Or Trespass quare ckmsiim fregit — Direct interference with land in possession of another).
1. This is the name of that species of wrongs redressible at common law by the old
writ of trespass which deals with unjustifiable interference with land in the possession o[
another. In Blackstonc's Commentaries,' we find the following description of the tort:
"Every unwarrantable entry on another's soil, the law entitles a trespass by breaking the close; the words of the writ of
trespass commanding the defendant to show cause quare clausum querentis fregit. For every man's land is in the eye of
the law, enclosed and jet apart from his neighbour's; and that, either by a visible and material fence, as one field is
divided from another by a hedge; or, by an ideal invisible boundary, existing only in the contemplation of the law, as
when one man's land adjoins to another's in the same field."
2. The torts protects the interest of the plaintiff in having his land free from physical intrusion. It does not protect
ownership as such, but possession; however, since often the owner is in possession, the purpose of many suits in trespass
is not only recovery of damages, but to settle disputed rights over land. Thus the toil serves three distinct purpose: (a) it
provides _damages in the law; (b) it settles title to land; and (c) it provides protection against abuse of powers by
officialdom. Possession here means power to use the land and to exclude others, i.e. occupation or physical control of the
land and power to exclude others.
3. The tort may thus be comprehensively defined as "intentionally or negligently entering or remaining on or directly
causing any physical matter to come into contact with land in the possession of another." That is to say, it is a trespass to
enter or remain on the land of another intentionally or negligently or to cause anything which has mass to come into
direct contact .with land in the possession of another, e.g. throwing stones on to the land.
What arc the elements of this Tort? What constitutes the trespass?
4. What are the elements of this tort? What constitutes the trespass?
DIRECT ACT
As a trespass, the act complained of must be direct, e.g. crossing the land, felling trees, shooting over the land, shooting
into the land: sec Pickering v. Rudd, per Lord Ellenborough. In that case the house of Rudd adjoined to the garden of
Pickering A Virginian Creeper which grew in the garden of Pickering spread itself over the side of Rudd's house. Rudd a
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barber, decided to hang a sign board on that side of the house covered by die Virginian Creeper. He managed by means
of ropes and a scaffolding suspended over the garden, without touching the surface: of Pickering's premises, to cut away
such a portion of the creeper as was sufficient to admit his sign board and fixed the board to his own house, projecting
sonic three to four inches from the surface wall. Pickering sued Rudd for trespass, alleging both the cutting of the creeper
and the projection of the board into his air space. Rudd justified the cutting by the fact of its projection into his premises.
Pickering argued that more harm had been done by Rudd than was necessary. Verdict for Rudd Mere Lord Ellenborough
expressed the view that it is a trespass to lire a gun into someone's land. Lord Ellenborough also said it would not be a
trespass to pass over a man's land in a balloon.
POSITIVE ACT
The tort depends on an affirmative/positive act. An omission to act leading to interference with another's land, does not
constitute a trespass, although it may provide the foundation for an action in nuisance. As noted already, there must be
an affirmative act by the defendant, e.g. (i) A fells a tree which falls into B's land — trespass; (ii) A discovers a tree on his
land eaten by termites and ready to fall but does nothing about it. On a windy day, the wind blows down the tree and it
falls into B's land — no trespass. This is because this was not the result of a positive act; neither does it flow from a direct
or immediate act.
PHYSICAL INTERFERENCE
There must be physical interference with the land. As an example, we may look at the case of Lavender v. Belts.4 The
defendant let to the plaintiff a flat consisting of the first and second floors of a dwelling-house on a weekly tenancy basis.
The plaintiff was making irregular payment of the rent. The rent fell into arrears. After about two years, he served a
notice to quit on the plaintiff who ignored the notice and continued in possession. In February 1941, the defendant gave
another quit notice and from April refused to receive any rent in order to avoid any waiver of the quit notice. In
November 1941, the defendant, without making an application as he was required by statute, i.e. the Increase of Rent
and Mortgage Interest Restrictions Acts, 1920-1933 to a court for possession, because the plaintiff had become a
statutory tenant, obtained admission to the flat on the pretext of going to have a private discussion with the plaintiffs
wife. He gave instructions to men he had brought with him to remove all the doors and windows, with the result that the
plaintiff could live in it only at considerable discomfort and danger to his health. The defendant had asked police to be
present while the windows and doors were being removed. The plaintiff sued for trespass and breach of the covenant for
quiet enjoyment. It was held he must succeed and punitive damages would be awarded, per Lord Atkinson.
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We may contrast this with the decision in the case of Perera v. Vandiyar. In this case also, the plaintiff was a statutory
tenant. To evict him, the landlord cut off the supply of gas and electricity to the Hat from his end of the premises and the
tenant was forced to leave. After a week, the supply was reconnected. The tenant then sued the landlord for breach of
the implied covenant for quiet enjoyment, and an injunction restraining the landlord from further breaches of that
covenant. He also added a claim for damages for eviction. Judgment was given to the plaintiff and the landlord appealed
on the question of damages. Held, allowing the appeal, that there was no tort of eviction. That any evidence of eviction
on the facts amounted only to a breach of contract. There was no interference with any part of the premises and
therefore no action in trespass, per Sir Raymond Evershed M.R., Birklett L.J., Romer C.J.
LACK OF CONSENT
Where a person enters someone's land with the leave and licence of the landlord, then the licensee becomes a
trespasser, if he refuses to leave after the licence has been revoked, i.e. he overstays, provided he has been given
reasonable lime to leave the premises. What is reasonable lime will depend on the situation. We may illustrate this point
with two cases: Hurst v. Picture Theatres Ltd. The plaintiff had paid six pence to watch a film at the defendant's cinema
theatre. After the performance had begun, the plaintiff who was suspected by management to have entered without
paying was asked to leave but he refused insisting that he had a ticket. Eventually, he was forced out. He brought this
action for assault and false imprisonment. The defendants justified their conduct, inter alia, on the grounds that they
were entitled, without assigning any reason, to ask the plaintiff to leave the theatre and if he refused, to remove him
forcibly. Judgment was given to the plaintiff and the defendants appealed. The appeal was dismissed. The appellate court
noted that:
"the purchaser of a ticket for a seat at a theatre or other similar entertainment has a right to stay and witness the whole
performance provided he behaves properly and complied with the rules of management.
The licence granted him by the sale of a ticket includes a contract not to revoke the licence arbitrarily during the
performance."
So battery and false imprisonment were committed on him.
The second case was Cowell v. Rosehill Race Course Co. Ltd.8 Here the plaintiff-appellant sued the defendant-respondent
for damages for assault. The defendant replied by saying that the plaintiff was trespassing on his land and what he
alleged to be assault was the reasonable force he had used to remove him from the land. The plaintiff had paid four
shillings to watch a race meeting being held by the defendants. In the course of the meeting, the defendants asked the
plaintiff to leave and, upon his refusal, forcibly removed him from the course. The plaintiff alleged further that he had
acquired a right to be there which could not be prematurely revoked, and that the purported revocation was
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ineffectual. It was held (Evatt J. dissenting), that no action for assault would lie, reasonable force having been used for the
removal. This is because the plaintiff merely had a contractual right which was revocable mid not a proprietary interest in
the land. If the right was unjustifiably interfered with, his proper course would be an action for breach of contract. The
court declined to follow the English decision of Hurst. Since then the conclusion in Cowell has been preferred to that of
Hurst. So if you are on somebody's land with his permission, then you commit no trespass. You become a trespasser only
if he revokes your licence and you still remain there after: see also Robson v. Hallett.
The defendant need not enter the land physically but by forcing objects to get onto the land of A, or by causing some
foreign matter (anything with size or mass such as gas, flame or beams from torchlight) to enter or come into physical
contact with another's land, he commits a trespass. — Recall Pickering v. Rudd .
THE ACT MUST BE VOLUNTARY
The act complained of as the trespass must be the voluntary act of the defendant Here it is immaterial whether A was
aware he was trespassing. But, if through the action of others, the defendant trespasses on the land of A, it is those
others who are liable to A in trespass. This is illustrated by Smith v. Stone.11 In that case, an action was brought against
Stone for trespass to Smith's land. Stone pleaded that he was forcibly carried onto Smith's land by others and did not go
there on his own volition. Justice Roll held that the trespass was committed by those who carried Stone onto Smith's land
and not Stone. He gave this example: If A drives my cattle onto B's land, A is the trespasser and not I, the owner of the
cattle.
But we must distinguish (a) involuntary acts of the kind described above from (b) an honest mistake. Mistake, as such, is
no defence in trespass. If you cut your neighbour's grass in bona fide belief that you are cutting your own, it is
nonetheless trespass. Here it does not matter whether the mistake is one of law or fact, provided the physical act of entry
was voluntary, e.g. A strays off a footpath in the dark or B delivers goods by mistake to the wrong address and places
them on the land of the occupier without his consent. A and B are liable in each example in trespass to land.
Thus, in Basely v. Clarkson,1" the defendant, in mowing grass on his own land, mistakenly, because the boundary
between his land and the plaintiff's was ill-defined, mowed the plaintiff's land and took the grass away. He paid the
plaintiff two shillings as sufficient amends when the action was instituted against him. It was held that this was trespass
because the act appeared voluntary and his intention and knowledge are not traversable, i.e. they cannot be known.
STATE OF MIND OF DEFENDANT
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As in all cases of trespass, the plaintiff must prove that the defendant acted cither negligently or intentionally and the tort
action will succeed without the necessity of proving damage.
WHO MAY SUE IN TRESPASS TO LAND
Trespass lo land is actionable at the suit of the person in possession of the land at the time when the trespass was
committed,
Possession entails, inter alia, the occupation or physical control of the land. The
degree of physical control necessary to constitute possession may vary from case to case. The type of conduct which
indicates possession will vary with the type of land. In the case of a building, for example, possession may be
evidenced .by occupation, or, if unoccupied, by having the key or oilier means of entry: see Wuta Ofei v. Danquah per
Lord Guest (P.C.). In that case, the plaintiff acquired land which he did not immediately occupy but put pillars on. The
defendant built on it. It was held to be Trespass. The presence of the pillars was taken to evidence possession.
Examples of acts amounting to possession:
a) Building a wall around it;
b) shooting over it
c) taking grass from it;
d) cultivating or using it for pasture; and
e) having the key to the house.
Proof of ownership is prima facie proof of possession. So is occupation. The rule as applied in Mensah v. Peniana is
"Mellior est conditio posidentis ubi neuter his habet" — where both plaintiff and defendant are trespassers, the
defendant will prevail. See also Oshodemirim v. Tetteh. In Graham v. Peat, the plaintiff with possession under a void
statute, was held to have possession to maintain action for trespass. In trespass to land, averment of ownership amounts
to averment of possession. In Owiredu v. Mini Timber Co. Ltd., Ollennu J observed that it was a settled law that a person
in possession of land, though himself a trespasser, is entitled to maintain an action for trespass against any person who
disturbs his said possession except the person in whom title to the land is vested or anyone claiming in the right of the
true owner (i.e. agent or representative). In Nunekpeku v. Ametepe, the defendant pleaded that he was in possession.
The Supreme Court therefore held that, in such a case, the plaintiff had to prove that he was in possession at the lime
defendant entered upon the land and dispossessed him of it.
Note, however, that the mere use of land, without exclusive rights of possession, (i.e. the power to exclude others)
cannot support a suit in trespass. In Hill v. Tupper, an incorporated canal company, by deed, granted to the plaintiff the
sole and exclusive right liberty of putting or using pleasure boats for hire on their canal. He brought an action against the
defendant for setting up a rival concern on the canal.
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It was held that the grant did not create such an estate or interest in the plaintiff as to enable him to maintain an action in
his own name against a person who disturbed this right by putting and using pleasure boats for hire on the canal. Chief
Baron Pollock was of the view that the grant merely operated as a licence or covenant on the part of the grantors and is
binding on them, as between themselves and the plaintiff. But it gives him no right of action in his own name for any
infringement of the supposed exclusive right. If he has been disturbed, he must obtain permission from the canal
company, to sue in their name.
Mere occupation of premises is also not sufficient to support an action in trespass, e.g. a lecturer in his bungalow is a
licensee and not a tenant and so cannot sue. Similarly, lodgers, such as guests at a hotel and students in their
dormitories, cannot sue in trespass because they do not have sufficient possession of their rooms. See, on this point, the
decision in Allan v. Liverpool Overseers.
Again a servant who, for better execution of his duties, is given occupation of premises cannot maintain an action for
trespass to the premises, in his own name. The last point is illustrated by the decision in White v. Bayley.20 In that case,
the plaintiff was employed by the trustees of a society and paid £75 a year for managing and living on their premises. The
agreement was terminable after six months’ notice. The trustees gave notice to quit and took possession of the premises.
The plaintiff forcibly re-entered. In an action by the plaintiff, he was non-suited and the trustees obtained injunction
compelling the plaintiff to give up possession Byles J in his judgment stated:
"The first count of the declaration complains of trespass to land. That clearly does not lie unless the plaintiff has some
estate in the land the plaintiff had the use but not the occupation of the premises."
Willes J pointed out by way of explanation that if the employee were held to be vested with occupancy, then the
relationship of master and servant or principal and agent would not hold, since if the servant or agent has been guilty of
misconduct and his appointment is terminated, the servant might set his master at defiance, and though the master be
right in putting an end to the master-servant relationship, the servant might insist upon holding on until the expiry of a
notice to quit.
SUBJECT MATTER OF TRESPASS
The subject matter of trespass is land and everything attached to it. The general rule is that he who owns the land is
presumed to own everything "up to the sky and down to the centre of the earth." Cujus est solum ejus est usque ad
coelum et ad inferos — whosoever has the soil, also owns everything up to the heavens above and down to the centre
beneath earth..
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Land, in its legal signification, has an indefinite extent upwards so that, by a conveyance of land, all buildings erected on
it, growing timber and water, being there upon it likewise pass. Any interference with the super-incumbent column of air
may give rise to an action in trespass. In law, land extends also downwards, so that whatever is in a direct line between
the surface and the centre of the earth belongs to the owner of the surface. The subject matter of this tort is thus land.
This can be divided into surface soil, sub-soil and air space for purposes of the tort of trespass to land.
(a) Trespass to the surface
Any kind of direct interference with the surface is trespass, e.g., digging, throwing stones, cutting timber etc. Improper
use of a highway may also constitute trespass. In Harrison v. Duke ofRutland',2~ the defendant owned the land adjoining
the highway and the soil of the highway. The plaintiff went on the highway expressly to interfere with his game by driving
away the grouse to be shot. He was asked to stop and, when he persisted, the servants of the defendant held him down
until it was no longer necessary. He brought an action for assault and false imprisonment. The defendant counter-claimed
that the plaintiff was a trespasser. Judgment was given to the plaintiff. On appeal by both the plaintiff and the defendant,
the plaintiff on the sufficiency of amount paid and the defendants on the trespass issue, it was held that, since the
plaintiff was on the highway for a purpose other than passing or repassing on it, he was trespassing. So the judgment
given in his favour was set aside.
Again in Hickman v. Maisey, the plaintiff was the owner of land crossed by a highway. He let out pail to a trainer of horses
for the training and trial of race horses. One could watch the training from the highway. The defendant who owned a
publication which gave account of the performance of race horses in training used to stand on the highway to watch (spy
on) the training. The trainer objected to this and the plaintiff gave the defendant notice to discontinue his practice. But
he refused. On this occasion, he walked back and forth on a portion of the highways, the soil of which was vested in the
plaintiff, for about one and a half hours with glasses and took notes. The plaintiff sued him for trespass and injunction to
restrain him. Judgment was given to the plaintiff. The defendant then brought application for a new trial. It was held that
the defendant had exceeded the ordinary and reasonable user of the highway and he was therefore guilty of trespass. His
application was therefore dismissed.
(b) Trespass to the sub-soil
There can be trespass to the sub-soil especially where mineral rights have been granted away: see Cox v. Moulsey. So
interference with the sub-soil is actionable as trespass at the suit of the person in possession of the sub-soil.
(c) Airspace
The law grants a reasonable airspace above the land to the person in possession of the land. It is a trespass to violate the
allowed airspace above the ground. Here we may recall Lord Ellenborough's statement in Pickering v. Rudd2 that it would
not be a trespass to pass over a person's land in a balloon. We may also note that, in this case, it was held that there was
no trespass by the projection of the board into the airspace above the plaintiffs land.
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This decision is inconsistent with the one in Kelsen v. Imperial Tobacco Co. Lid."' The defendants had erected three metal
signs advertising their wares. With the permission of the plaintiff's landlords, they replaced them with a new sign which
encroached slightly on the airspace above the plaintiff's roof. The plaintiff knew all about this because he allowed the
defendants maintenance men to go on his roof through the skylight which he otherwise never used. Five years later, after
certain business difficulties with the defendants, the plaintiff demanded the removal of the sign and when the defendants
refused, he sued them for an injunction and succeeded. McNair J held that this was not a mere nuisance but a trespass
and therefore injunction would lie. The case resolved any doubts as to whether mere interference with the airspace
without physical contact could be trespass. Kelsen's case has been distinguished from Pickering v. Rucht on the ground
that here the interference was permanent.
But in Ellis v. Loftus Iron Co., the defendant's horse kicked and bit the plaintiff's mare through the fence and injured it. It
was held that this was trespass by the horse for which the defendant was liable. The horse's mouth and feet protruded
through the fence over the plaintiffs land, — so it amounted to trespass, even though the trespass was transient. Per
Coleridge C.J.:
"It is clear that, in determining the question of trespass or no trespass, the court cannot measure the amount of the
alleged trespass; if the defendant place a part of his foot on the plaintiffs land unlawfully, it is in law as much a trespass as
if he had walked half a mile on it."
The Trespass in this case was transient. See also DOUGHERTY v. STEPP.
From these two cases (i.e. Kelsen's & Ellis) it is clear that to violate someone's airspace is trespass whether the violation is
permanent or temporary. Note, however, that, by virtue of section 29 of the Ghana Civil Aviation Act, 2004 (Act 678), no
action can lie in respect of trespass or nuisance by reason of transient harmless incursion of an airspace by an aircraft.
Another interesting case that deals with trespass to the airspace above someone's land as a species of trespass to land, is
Bernstein of Leigh v. Skyviews General Ltd. ° Are the landowner's rights in the air space above the property unlimited?
The answer in above case was in the negative. It was held (per Griffiths J) — that the right of the owner of land in the
airspace above his land is restricted to such height as is necessary for the ordinary use and enjoyment of his land and the
structures on it.
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Trespass to chattels
Introduction
The law provides a series of actions for the protection of chattels against intentional interference. These actions can be
fully understood in the context of the days when formalism and fiction filled the law — through the forms of action. For
as Salmond said,the "forms of action are dead but their ghosts still haunt the precincts of the law."
As Dixon J said, in Penfolds Wines Proprietary Ltd v. Elliott in English, (as well as Ghanaian) law, what amounts to an
infringement upon the possessory and proprietary rights of the owner of a chattel is a question still governed by
categories of specific wrongs. These categories are:
a) trespass de bonis asportatis (trespass to chattels, goods, personalty or moveable property);
b) conversion;
c) detinue (abolished in England since 1977)
d) replevin; and
e) innominate injury to the possession of another for which there existed a special action on the case for the protection
of reversionary interests.
Detinue was the oldest, being a retinue of the old writ of debt. The writ of trover which is an antecedent of conversion is
an action on the case and was developed as a result of the inadequacy of debt or detinue action which could be side-
stepped by wager (compurgation) of law.
These two writs (trespass and detinue) left gaps in the law. The action on the case called trover was developed to fill
these gaps. But, later, it was found so useful that it was developed to swallow the other two. Thus, today, in the case of
minor interferences, the action available is that of trespass "de bonis." Whereas major interferences are met with
conversion. Conversion, therefore, has become the chief method for protecting chattels from intentional interference.
Let us now consider seriatim the actions mentioned above by Dixon J.
Trespass to chattels (goods)
This tort is committed by intentionally or negligently interfering with a chattel in the possession of another. The
interference must be direct. As Salmond puts it,4 the tort: "Consists in committing without lawful justification any act of
direct physical interference with a chattel in the possession of another person." See also Forson v. Koens.
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The interference may be an act which brings the plaintiff's body into contact with the chattel. Thus, it is a trespass to
take away a chattel or to do wilful damage to it. It is a trespass to lean against somebody's car or to throw water at it. It
is equally a trespass to hit somebody's goat or to catch and take a feather off somebody's hen.
It provides a wider cover of protection than conversion because a mere act of interference is sufficient and there is no
need to prove special damage. You do not need to prove a denial of title either; that is, the interference need not be
adverse to title. But it is narrower than conversion because of the requirement that the interference be direct. The
defendant's act must be the act which directly causes the trespass. So, for example, it is no trespass if the defendant
puts poison in food for the plaintiff's dog to consume and it does; or puts a barrier across a road into which the plaintiff
drives his car. However, there is no reed for the plaintiff to come into contact with the chattel physically. For example,
to throw a stone at a car is trespass.
In the earlier cases, trespass to chattels involved asportation or carrying off. Later, it was extended to cover situations
where the chattel, though damaged, was not taken away. Finally, it was applied to any physical interference with
chattel in the possession of another.
De bonis is now limited to intentional interference with chattel. For, while an action will lie for negligent interference
which causes damage, this has been absolved into the general field of negligence actions.
It is actionable per se
The orthodox rule remains that this tort is actionable per se, that is, without any proof of actual damage. Any
unauthorised touching or moving of a chattel is actionable at the suit of the possessor, even though no damage ensues
(e.g. erase a tape-recording, show a letter to an unauthorised person.
However, a New Zealand judge has held that an intentional interference with a chattel without asportation is not
actionable unless there is harm. The case is Everitt v. Martin. In that case the plaintiff, while alighting from his car in a
car park, had his coat caught on the dilapidated fender of the defendant's adjoining car. In an action for damages, the
court found that the defendant was negligent in the sense that he, knowing his car's condition, should have foreseen
the likelihood of such an injury when parking his car in the heart of a big city. The defendant argued that the plaintiff
had committed trespass, that is by allowing his coat to make contact with the defendant's car! The judge held that
there was no right of action in the case of merely accidental contacts, where no damage is done. He referred to Slater
v. Swan.9 But it is doubtful whether the latter case really supported his position because it was an action on the case.
hi Slater v. Swan, the plaintiff alleged, in an action on the case, that the defendant beat his horse violently and thus
deprived him of its services for several days. The defendant demurred. The defendant alleged that the plaintiff had
positioned his horse in such a way that a cart he had hired to take his goods could not come in. That he whipped the
horse to remove it from there. Chief Justice Raymond ruled that, in an action on the case, there was no liability in the
absence of special damage. He left it to the jury to decide whether the defendant had used more force than was
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necessary to remove the horse and cart from his door. The jury found for the defendant. Chief Justice Raymond said
that "if a hackney coach stands before a tradesman's door and hinders customers, he may lawfully take hold of the
horses and lead them away, and is not bound to take his remedy for damages." The taking of the horse would be
justified because of the obstruction. Secondly, there was no liability because the force involved in the taking was
reasonable and therefore did not constitute damage in law.
Besides, there is continuing authority for the orthodox view that trespass to chattels, like all trespasses, is actionable
per sc. The case is William Leiich v. Leydon.10 Here the appellants were manufacturers of mineral water. They sold
these beverages to customers in bottles embossed with their name and took steps to ensure that the property in the
bottles remained with them. The respondent dealt in aerated waters. In addition to the bottled ones, he had installed in
his shop a soda fountain. He made no inquiry of his customers as to their ownership of the receptacles provided, and
made no examination of the receptacles beyond seeing that they were sufficiently clean to receive the drink. The
appellants brought the action for suspension and interdict against the respondent for the use of their bottles. It was
held that the respondent was under no duty to examine the bottles before filling them or inquire into their history and
therefore the appellants were not entitled to interdict*. (In this case there were clear statements supporting the
actionable per se position). See also Fouldes v. Willoughby '' where it was held that the slightest touching of a chattel is
actionable as trespass. However, it seems clear from a close reading of the cases that the question of actionability is
determined by policy considerations.
In favour of a policy of actionability per se, we may argue that there is a genuine claim by people to have no
interference with certain types of property. For example, if I leave my toothbrush and you use it, you may not damage
it or do any harm to the brush but I may never use it again. Or underwear taken from drying line and worn!! Or, a man
comes to sit in your car and refuses to leave when you ask him, but insists on a lift. He may cause no harm to the seat.
But if you evict him, even reasonably, he might be able to sue you for battery unless you can set up his trespass against
him. So trespass must be actionable per se.
Against such a policy, it may be argued that there is no sound reason for according protection to non-harmful contacts
with chattels. Too much premium should not be placed on property. Contacts with chattels should not evoke the same
emotive feelings for the necessity of protection as trespasses to the person. These are serious arguments especially if
we remember that it was held in Fouldes v. Willoughby that the slightest touching Of a chattel is actionable as trespass.
To put the matter to rest, it may be helpful to remind ourselves of what Latham CJ. said in the Penfold Wines case:
"A mere taking or asportation of a chattel may be a trespass without the infliction of any material damage. The
handling of a chattel without authority is a trespass... Unauthorised user of goods is a trespass; unauthorised acts of
riding a horse, driving a motor car, using a bottler are all equally trespasses, even though the horse may be returned
unharmed or car unwrecked or the bottle unbroken."
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Relationship between person suing and the chattel interfered with
This tort primarily protects possession not ownership. An owner out of possession can, therefore, generally speaking,
not sue in trespass. The rule is that the defendant's act must disturb the plaintiff in his possession of the chattel. Thus in
Ward v. Macauley, the plaintiff was the landlord of a house which he let ready furnished to Lord Montfort. In levying
execution against Lord Montfort, the defendant, Sheriff of Middlesex, seized part of the furniture although he was told
it belonged to the plaintiff. The plaintiff brought an action for trespass against the defendant. At the trial, Lord Kcnyon,
C.J. thought trespass could not lie and that perhaps Trover; however judgment was given for the plaintiff for the value
of the goods with liberty for the defendant to move to enter nonsuit. In the words of Lord Ken yon C.J:
"The distinction between Trespass and Trover is well settled: the former is founded on possession; the latter on
property. Here plaintiff had no possession; his remedy was by Trover founded on his property in the goods taken. ..."
So no trespass.
Thus, to succeed, the plaintiff must prove that he was in possession of the chattel at the lime of the interference; that
is, either that the chattel was within his control by way of physical grasp or otherwise. For example, A leaves his goods
in his house and goes to work. He is, in law, still in possession of the car B leaves things in his car which he parks in the
car park in front of the University Bookshop. He is still in possession of the car and its contents.
This principle of possession is important, particularly for rural communities in Ghana as illustrated by the decision in
Hamps v. Darby The defendant was a farmer who, on the crucial date, had a crop of valuable peas on his farm-. The
plaintiff kept racing pigeons as a hobby. He released them daily for exercise and they usually returned after 15 to 20
minutes. On the crucial day, he released nine birds which settled on and did serious damage to the defendant's crops.
After shouting unsuccessfully to drive them away, the defendant took his gun and without first firing a warning shot,
shot at the pigeons killing 4 and injuring a fifth. The plaintiff brought an action in the county court and the judge
awarded him £200 damages. The defendant appealed. The appeal was dismissed per Greene M.R. and Evershed L.J.
The court held inter alia:
(1) "... the owner of tamed or reclaimed pigeons continues to have property in and possession of his birds after they
have flown from his dove-cote, so long as the birds retain an animus revertendi to his control.
(2) No Justification proved because plaintiff did not establish that shooting them was the only thing he could do. The
onus was on him to justify the shooting." So an action in trespass can be maintained by the plaintiff.
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Reference can also be made to the decision in the Winkfield. ' This was an appeal from the order of a lower court
presided over by Sir Francis Jeune dismissing a motion made on behalf of the Postmaster-General. On April 5, 1900,
there occurred a collision between the steamship, The Mexican and the Winkfield. The Mexican was sank as a result of
the collision. The owners of the Winkfield under a decree limiting liability to £32,514 17s. lOd. paid that amount into
court. The Postmaster-General on behalf of himself and the Postmasters-General of the Cape Colony and Natal claimed,
inter alia, to recover from that sum the value of letters, parcels etc. in his custody as bailee and lost on board The
Mexican. It was agreed by all the parties that the claim was one by a bailee who was under no liability to his bailor for
the loss in question, the legal position of which was settled by Claridge's case. ' On the authority of that case, therefore,
the court dismissed the claim. On appeal it was held by the Court of Appeal (Collins M.R., Stirling and Matthew L.J J
concurring) that the bailee in possession can recover the value of goods, although he will have a perfect defence to an
action by the bailor for damages for the loss of the thing bailed, in an action against a stranger for loss of goods caused
by the stranger's negligence; that is possession is good against a stranger whatever the rights arc between the bailor
and the bailee.
There seems no requirement in trespass that the possession should be lawful. It may well be therefore that, as against
a stranger, a thief of a chattel may bring an action for trespass to it. This point may be illustrated with the case of
Wilson v. Lombank Ltd. The plaintiff bought a car from A who had no title to sell. Apparently, the defendants had also
bought the same car at one time. The plaintiff took the car to a garage for repairs. A representative of the defendants
took the car away when the repairs were finished. And, when they discovered it belonged to someone else, delivered it
to the true owner. The plaintiff brought this action for damages for trespass claiming the full value he had paid as well
as the cost of the repairs. Judge Hinchcliffe said he was entitled to succeed because he had possession though no title
"because he had a right to immediate possession as well as possession."
Where you sell goods upon a judgment as a judgment creditor, you have to prove the judgment upon an action for
trespass. This was decided in White v. Morris. In this case one Robinson who had earned on business as a draper at
Sunderland became insolvent. He assigned all his household furniture and stock in trade to trustees for the benefit of
his creditors. The trustees took possession and sold the goods to Robinson and one Story the latter paying for them
partly in money and partly by bills. When the bills became due, and Story could not meet them, the present plaintiff,
White, agreed to lend Robinson and Story £120 with the goods in question as security. The goods were accordingly
assigned to White. By the deed of assignment, Robinson and Story covenanted to pay White the £120 on a given day
with interest and assigned to White all the goods in a certain shop and dwelling place (in respect of which this action
was brought), to hold the goods and premises assigned until payment of the money and with a power to White to sell
upon default in payment.
Morrison, Gibson and Wheatley who were manufacturers at Manchester were creditors of Robinson at the time of the
first assignment. They declined to concur in that assignment and after the trustees had sold the property to Robinson
and Story they sued Robinson in the Sunderland county court and obtained judgment against him.
Taylor and Thompson executed this judgment and sold the goods. The only evidence of the seizure and sale was, the
production of the writ of mandate directed to them with the indorsement of the high bailiff
In an action by the plaintiff for damages to the goods, it was held that "when goods are assigned as security for an
advance of money, upon trust to permit the assignor to remain in possession of them until default in payment at the
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time stipulated ... the assignee has a sufficient possession to enable him maintain trespass against a wrongdoer." The
judgment creditor in the circumstances has to prove the judgment.
The following exceptions to this rule on possession may be noted
1. Trustees are allowed to sue for trespass to chattels in the hands of beneficiaries.
2. The title of personal representatives (administrators and executors) is treated by the law as relating back to the
time of death of the deceased and they are allowed to sue for interference in the estate of the deceased which
occurred before probate or letters of administration.
3. In a bailment for a fixed term, the bailor has no possession. But, in a bailment at will, both bailor and bailee can sue
third parties although physically the goods interfered with are in the hands of the bailee. For bailment for a fixed term,
only the bailee can sue. The bailee can sue for full value of the chattel, although there is a legal duty on him to hand
over that part of the damages that is over and above his interest, as was noted in The Winkfield.
4. The owner of a franchise which entitles him to goods can bring an action in trespass in respect of interference with
the goods before he has actually taken control of them.
Measure of damages
Where he is deprived completely, a plaintiff is entitled to recover full value of the chattel. The plaintiff who is successful
in an action for partial damage is entitled to actual damage, i.e. partial.
Requisite mental requirement
The law is that, for trespass to goods, it must be shown that the interference was deliberately or intentionally made.
The best authority on the mental state required by law for an action in trespass to chattels is National Coal Board v.
Evans. An electrical cable had been placed under the land of a county council by the plaintiffs or their predecessors
without the knowledge of the owners-of the land. The council contracted with the first defendants to excavate a
trench on this land, handing to them a plan which did not the cable. The first defendants sub-contracted with the
second defendant to excavate the
trench; and their driver, in the course of doing so with a mechanical excavator damaged the cable. The plaintiffs
brought an action in trespass against both defendants and obtained judgment. The defendants appealed. It was held
by the Court of Appeal (Cohen, Simpleton and Morris L.JJ) that the appeal must be allowed. There was no liability in
trespass, since the act was involuntary and accidental. The defendants were utterly blameless. The injury was, in the
main, attributable to the plaintiffs or their predecessors, who had committed trespass by placing their cable under the
land county council without their knowledge or consent. By "not intentional", in the above
case, we must understand that the court meant that the driver did not deliberately trespass to the cable.
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Halaby v. Halaby is also useful on this point. The plaintiff was an agent for the firm Halaby Brothers. In 1957, the West
African Court of Appeal ordered the partnership properties to be sold. The defendants went to Nandom to carry out
the sale. They found all the goods had been removed from the firm's store. Upon inquiry, they discovered the goods
and a safe belonging to the firm in a store which the plaintiff claimed to be his. They sold the goods and took the safe to
Kumasi where it was opened the registrar. Apparently some of the goods sold belonged to the plaintiff. He therefore
brought an action for trespass and claimed £1,166 3s. 6d., the value of the good £200 in cash removed, he alleged,
from the safe and £4,000 general damages. The was dismissed and the plaintiff appealed. It was held that the appeal
must be dismissed. The trespass complained of was involuntary and accidental. The defendant cannot be held liable for
any damage as such damage was largely attributable to the plaintiff fraudulent act in removing the firm's goods into his
own store. (Clear authority proposition that for there to be liability in trespass to goods the interference must have
been intentional).
So the plaintiff in an action in trespass to chattels must prove that the defendant acted intentionally. If the interference
resulted from negligent conduct, then the plaintiff should bring the action in the tort of negligence.
Conversion
Introduction
This tort is concerned essentially with conduct which is an affront to another's property or title in a chattel. In other
words, it seeks to protect a person's ownership, control and general dominion over them. As Lord Nicholls said in
KUWAITI AIRWAYS CORPORATION v. IRAQI AIRWAYS (Nos. 4 & 5) [2002] A.C. 883 at 1092:
"Conversion is the principal means whereby English law protects ownership of goods. Misappropriation of another's
goods constitutes conversion. Committing this tort gives rise to an obligation to pay damages." This statement was
quoted with approval by: Dr. Date-Bah, JSC in the YUNGDONG case (infra).
To understand this tort, we must delve into its origin and development. We shall attempt this briefly here.1
There are three main ways by which A may deprive another of chattel and thereby open himself to an action in law:
a) by wrongly taking it;
b) by wrongly detaining it; or

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c) by wrongly disposing of it.
In (a), the possession of the tortfeasor is wrongful ab initio. In (b), he may acquire possession lawfully but retains it
wrongfully. In (c), he need not take it nor wrongfully detain it, but he so acts that it is lost to the actual owner.
Originally the law provided three distinct forms of action for the redress of these three situations mentioned, namely:
a) Trespass de bonis asportatis for wrongly taking the chattel.
b) Detinue for wrongful detention of the chattel.
c) Trover for wrongful disposal of the chattel.
Trespass and detinue date from the early beginnings of the law. Trover was later developed, (15th to 16th century).
In the modem law, the term conversion covers the three situations described above, but, originally, it was limited only
to the third situation. Originally, therefore, to convert goods meant to dispose of them, to deal with them in such a way
that neither the owner nor the wrongdoer had any further possession of them, e.g. by consuming, destroying or selling
them. To take away someone else's goods, however, unlawful, was not to convert them. Nor did the mere detention of
the goods of another in defiance of the owner's title amount to conversion, e.g. money converted by the thief spending
it, food by eating it, jewels by pawning them. Conversion now covers the whole field because, as a result of a historical
development, it was extended to appropriate or covet the territory which was formerly occupied by the other forms of
action.
Historical development
Before trover was developed, interferences now amounting to conversion were redressed by detinue. This is because
the defendant in detinue, who was charged with unjustly detaining goods of the plaintiff, was not allowed to object to
the action on the grounds that he had already disposed of them and therefore no longer detained them.
Trover was developed, because detinue was an unsatisfactory remedy since it permitted wager of the law (a form of
licensed perjury as noted earlier under trespass). So pleaders began to avoid all forms of action in which wager was
allowed by the law and invented other forms of action in which the plaintiff was allowed the benefit of a jury. The
declaration in trover was simply a variation of the declaration in detinue. The only material difference was that in trover
the defendant was sued for wrongly converting the chattel to his own use, while in detinue the allegation was one of
unjustly detaining it.
Detinue was of two kinds: (a) detinue sur bailment; and (b) detinue sur trover.
a) was the appropriate remedy if the defendant got the property through a bailment or contract between the parties
or some-how lawfully (bailment); and
b) where the defendant had found the goods or come into possession of them in a manner other than by contract
with the owner (finding).
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Allegations of bailment and finding were, however, fictional, immaterial and untraversable. The means by
which the defendant obtained possession of the goods was unimportant. The only issues were
Did the goods belong to the plaintiff?
Has the defendant unjustly detained them?
The action of trover (and later conversion) was modelled upon that of detinue sur trover. Here the plaintiff alleged
three things:
a) that he had possession of certain goods de bonis propriis — a legal fiction (could have alleged a bailment instead);
b) that he casually lost them and defendant found them enough to say, ldevenerunt ad manus defendentis');
c) the defendant did not return them but wrongfully converted them to his own use.
Trespass and trover were both actions founded upon possession and for centuries they remained as alternative
remedies for the wrongful taking or damaging of chattels. There was one important difference as to the measure of
damages.
The theory of trespass was that the plaintiff remained owner, with his possession merely interrupted or interfered with,
so that when the chattel was tendered back to him he had to accept it. His recovery was limited to damages to the
chattel or to his possession, often considerably less than the value of the chattel.
The theory of trover on the other hand was that the defendant, by "converting" the chattel to his own use, had
appropriated the plaintiffs property for which he was required to compensate him. The plaintiff was therefore not
required to take back the chattel when tendered to him and he recovered, as damages, the full value of the chattel at
the time and place of conversion. Thus the defendant was forced to buy the chattel through trover.
The basic difference between trespass and trover or conversion was poignantly brought out in Fouldes v. Willoughby.
This was an action in trover for two horses. The defendant was manager of a ferry. The plaintiff embarked upon the
defendant's ferry with two horses and paid the appropriate fare. When the defendant came on board, he was told that
the plaintiff had misbehaved on board; he therefore told the plaintiff that he would not carry his horses and that he
should take them off the boat. The plaintiff refused to do this. The defendant then took the horses off the boat and put
them onshore and they were conveyed to a hotel by his brother. The plaintiff remained on board and was conveyed to
the other bank. Later, the horses were sold to defray the cost of keeping them. The plaintiff thereupon brought this
action for trover.
The learned judge, in summing up, told the jury that the defendant, by taking the horses from the plaintiff and turning
them out of the vessel, had been guilty of conversion unless they thought the plaintiffs conduct justified his removal
from the boat and he had refused to go without the horses. The defendant appealed. It was held that this was a
misdirection because, per Lord Abinger C.B.:
"... a simple asportation of a chattel, without any intention of making any further use of it, although it may be a
sufficient foundation for an action of trespass, is not sufficient to establish a conversion."
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The intention of the defendant should have been put to the jury. For, if his object was simply to induce the plaintiff to
go on shore himself, then the defendant had not done anything inconsistent with or adverse to the rights which the
plaintiff had in the horses. Baron Alderson explained the law in the following terms:
"Any asportation of a chattel for the use of the defendant or a third person amounts to conversion; for this simple
reason, that it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, who is
entitled to the use of it at all times and in all places. When, therefore, a man takes that chattel, either for the use of
himself or of another, it is a conversion. So, if a man has possession of my chattel, and refuses to deliver it up, this is an
assertion of a right inconsistent with my general dominion over it and the use which at all limes and in all places, I am
entitled to make of it; and consequently amounts to an act of conversion. ... But the question here is, where a man
does an act, the effect of which is not for a moment to interfere with my dominion over the chattel, but, on the
contrary, recognising throughout my title to it, can such an act as that be said to amount to a conversion? / think it
cannot."
Thus the action in trover failed in the case because there was no intention on the part of the defendant to interfere
with the plaintiffs right or dominion over the horses.
What is conversion then?
Conversion may be defined (in the words of Street or Baron Alderson in Fouldes v. Willonghby6) as an intentional
interference or dealing with the chattel, which is seriously inconsistent with the possession or right to immediate
possession of another.
Quoting with approval Lord Nicholls' discussion on the nature of the tort in KUWAITI AIRWAYS CORPORATION v. IRAQI
AIRWAYS (Nos. 4 &5) at 1054, the supreme court of Ghana (per Dr. Date-Bali JSC) at p. 846 in YOUNGDONG INDUSTRIES
LTD. v. RORO SERVICES "reflected on the tort thus;
" Mere unauthorised retention of another's goods is not conversion of them. Mere possession of another's goods
without title is not necessarily in consistent with the rights of the owner. To constitute conversion detention must be
adverse to the owner, excluding him from the goods. It must be accompanied by an intention to keep the goods". In
similar vein, the Supreme Court of Ghana stated in STANDARD CHARTERED BANK (GHANA) LTD. v. Nelson [1998-1999]
SC GLR 810 at 817 thus:
….conversion, then, is the wrongful possession of goods or chattel belonging to another and the use thereof by that
other." See also T. K. SERBEH & Co. LTD v MENSAH, [2002-2006] SC GLR 341.
There are two elements contained in this interference: (a) dealing with the chattel in a manner inconsistent with the
right of the person entitled to it; and (b) exhibiting an intention, by such dealing, to deny another's right or to assert a
right which is adverse to or at variance with his. Therefore an action in conversion cannot succeed, if the interference
does not lend itself to the conclusion that the defendant is setting up a rival claim.
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TITLE TO SUE (Capacity)
In conversion, the plaintiff must have either actual possession or a right to immediate possession at the time of the
interference. Thus, although the tort of conversion protects title, and although from the point of view of the defendant,
his action can only be challenged, if it is inconsistent with ownership or the plaintiff's title, the interest that the plaintiff
must prove to succeed is short of actual ownership.
This is exemplified by the decision in Armory v. Delamirie? In this case, the plaintiff, a chimney sweeper's boy, found a
jewel and carried it to the defendant's shop (the defendant was a goldsmith) to know what it was, and delivered it to
the apprentice who, under the pretence of weighing it, took out the stones, and informed his master that it was worth
three and half pence. The master offered the money to the boy who refused to take it and insisted on having the jewel
back. The apprentice gave him back the socket without the stones. He sued in trover. It was held (per Pratt CJ.) as
follows:
1. The finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has
such a property as will enable him to keep it against all but the rightful owner, and can consequently bring an action in
trover.
2. The action in law must be against the master, who gives credit to his apprentice and is answerable for his neglect.
3. The measure of damages should be assessed at the value of the jewel of the finest water that would fill the socket,
i.e. the value of the best jewels.
Thus mere possession, without title, was held in this case to be sufficient to maintain an action in conversion.
The reason for permitting the person in possession to sue in conversion is said to be that the person in possession has
sufficient title against the wrongdoer who has no rights at all. He is also in a better position to account to the true
owner should he come back later. But an owner not in possession cannot maintain an action in trover. So it was held in
Gordon v. Harper? However, an owner out of possession is not entirely remediless. He can sue in an action on the case
for damage done to his reversionary interest with respect to those interferences which would make the reversionary
interest valueless see the Pen fold Wines Proprietary Ltd. v. Elliot case. A case in point is Mears v. London & South
Western Rly. Co. The plaintiff was the owner of a certain barge which he had hired to a third person. The defendant's
servants negligently caused damage of a permanent nature to it, while they were lifting a boiler from the barge. At the
time the damage took place, the barge hiring agreement was still subsisting. The defendants denied any liability. It was
held (per Erie C.J. and Williams J) that trover will lie for a permanent injury done to a chattel while the owner's right to
possession is suspended. The determination of what would suffice as possession to support an action in conversion can
only be confidently speculated on by reference to the decided cases and principles emerging therefrom.
What is possession for the purposes of this tort?
Professor Street defines it in terms of an animus possidendi — an intention and a factum (power). He explains that
possession connotes the power to control and the intention to exclude all others from the enjoyment of the chattel.
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This ideal and simplified conception is watered down in its application in the cases. For example, if one does not know
about a chattel, you can hardly be said to have an intention to exclude others from its use or enjoyment. Yet the tort
often protects damage to things in the subsoil and it can hardly be said that a person knows what is beneath the soil. In
Ahiable v. Dosu, it was held that the owner of land was prima facie owner of chattels found in it unless he divested
himself by abandonment, sale or gift.
For the purposes of possession in the tort, the law distinguishes between chattels found in or attached to land and
those found on land. The following three cases discuss the law on possession relating to chattels found in or attached to
the land:
1. South Staffordshire Water Co. v. Sharman.13 In 1895, the plaintiffs employed the defendant together with a number
of other workmen to clean a pool for them. During the cleaning, the defendant found two gold rings at the bottom of
the pool and refused to give them to the plaintiffs when required. He gave them to the police who, failing to find the
owner returned them to him. The plaintiffs sued the defendant in detinue for the recovery of the rings. The county
court gave judgment for the defendant on the authority of Armory v. Delamirie. No contract existed between them
requiring the handing over of things found during the cleaning. The plaintiffs appealed. The appeal was allowed (per
Lord Russell of Killowen C.J., Wills J concurring). Speaking for the appellate court, Lord Russell, relying on Pollock &
Wrights', Essay on Possession in the Common Law at p. 41, quoted the law thus:
"The possession of land carries with it in general, by our law, possession of everything which is attached to or under
that land, and, in the absence of a better title elsewhere, the right to possess it.
And it makes no difference that the possessor is not aware of the tiling's existence ... It is free to anyone who requires a
specific intention as part of a de facto possession to treat this as a positive rule of law. But it seems preferable to say
that the legal possession rests on a real de facto possession constituted by the occupier's general power and intent to
exclude unauthorised interference... Where a person has possession of a house or land, with a manifest intention to
exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by
an employee of the owner or a stranger, the presumption is that the possession of that tiling is in the owner of the
“locus in quo”
2. In Elwes v. Brigg Gas Co., the plaintiff, Lord of the Manor of Brigg,
demised to the defendants, for 99 years, a piece of land in Brigg, in December
1885, reserving to himself all mines and minerals. In April 1886, the
defendant's company, while excavating the land prior to the erection of a
gasholder, discovered, embedded in the clay about six feet below the surface,
a prehistoric boat (about 2000 years old). The plaintiff asked for the delivery
to him of the boat and die defendant declined, asserting that the boat belonged
to them. The plaintiff sued. It was held that the plaintiff had a lawful
possession of the boat, good against all the world and therefore the property in
the boat. It was immaterial that he was unaware of the existence of the boat.
The licence to remove and dispose extended to the clay and ordinary soil
likely to be found in pursuing the licence to excavate but did not extend to
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what was unknown and not contemplated and therefore did not comprise the
boat.
3. In London Corporation v. Appleyard, the plaintiffs, freeholders of a building site, had leased it to A who was
financed by B. A clause in the agreement required the handing over of "every relic or article of antiquity, rarity or value"
to the plaintiffs. A wrote to B confirming that they held the property in trust for B. B entered into a building contract
with C for the construction of a new building. Two workmen of C, while working on the site, found, in the cellar, an old
wall safe built into the wall. Inside the safe was a wooden box containing bank notes issued in 1943 or 1944 to the
value of £5,728. The true owners were never found. On the issue of who was entitled to the bank notes in the absence
of the true owner, the court held that it was the corporation. This conclusion was reached by the court on the grounds
that:
a) the safe being built into the wall formed part of the demised premises and so the safe and its contents belonged
either to A or B, one or other of whom was in possession of the premises and thus had a better title than the finders.
b) The bank notes were articles of value within the clause by which the corporation had reserved such things to
themselves.
c) possession was in B either because (1) they financed it or (ii) because of the letter they were written by A.
These three cases state clearly the principle that the occupier or owner of a land to which things are attached has a
right to them when found. They indicate that possession of the premises will prevail, against the finder. But the right of
the tine owner will always prevail; that is the true owner of a chattel found on land has a title superior to that of
anybody else. As was stated in Moffat v. Kazana,18 the true owner's right to sue is based not on possession but on a
right to immediate possession.
The distinction between chattels found on land and in land makes trivials important. If a chattel is found on a dry patch,
the finder has possession; if in mud, the owner or occupier has possession! But maybe this is to encourage finders to be
honest, though the criminal law already seems to do this.
As regards chattels found on the land, as opposed to attached to or under, there is a conflict as to who has the right to
sue. Harris in his article19 suggests that, on public policy grounds, the owner has this right, since there is a chance that
he will remember where he placed it and 4»o back for it.
From the point f view of the protection of the true owner, possession must be said to vest in the occup.er of the land
on which the chattel is found as against the finder. But the law does not always work in this way. We can illustrate this
observation with the decision in Bridges v. Hawkesworth. Bank notes were accidentally dropped by the owner in the
shop of the defendant. The plaintiff found them on the floor. He gave them to the shop-keeper to find the owner. Later,
he sought to recover them from the shopkeeper who refused to surrender them to him. In an action by the plaintiff,
the county court judge decided that the defendant was entitled to the custody of the notes as against the plaintiff. This
was reversed on appeal by the Court of Queen's Bench. This is how Patterson J explained the decision on appeal:
"The notes were never in the custody of the defendant, nor within the protection of his house, before they were found,
as they would have been had they been intentionally deposited there; and the defendant has come under no
responsibility, except from the communication made to him by the plaintiff, the finder, and the steps taken by way of
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advertisement. ... We find, therefore, no circumstances in this case to take it out of the general rule of law, that the
finder of a lost article is entitled to it as against all persons except the real owner, and we think that that rule must
prevail and that the learned judge was mistaken in holding that the place in which they were found makes any legal
difference."
Similarly in Hannah v. Peel, the defendant was owner of a house he had never occupied himself. While the house was
requisitioned, the plaintiff, a lance-corporal, found in a bedroom used as a sick bay, loose in a crevice on top of a
window frame, a Brooch the owner of which was unknown. On the advice of his commanding officer, he handed it over
to the police and received a receipt for it. There was no evidence that the defendant had any knowledge of the
existence of the brooch before it was found by plaintiff. But the police, to whom the plaintiff handed it to ascertain its
owner, gave it to the defendant who, claiming it because it was on his premises, sold it. The plaintiff thereupon sued
the defendant for the return of the brooch or its value and damages for its detention. Birket J. held that the plaintiff
must succeed. The judge based his decision on Bridges v. Hawkesworth. He was satisfied that the brooch was "lost" in
the ordinary sense of the word and "found" again in the ordinary sense. The defendant had no knowledge of it until it
was brought to his notice. The finder was held entitled to the chattel as against the owner of the premises who had also
not been physically in occupation of the premises. [NB: the fact that the owner was never in occupation may probably
have been the reason the case was so decided].
However, in Hibbert v. McKieman,22 the appellant went on to the links of a gold club and took eight golf balls "animus
furandi," (to use Chief Justice Goddard's description of his intention) which, it was found, had been abandoned by their
former owners. He knew a police officer had been stationed there to warn off trespassers. The appellant was arrested,
charged with stealing the bails and convicted. He appealed. The appeal was dismissed. Lord Goddard C.J., said:
"Every householder or occupier of land means or intends to exclude thieves and wrongdoers from the property
occupied by him, and this confers on him a special property in goods found on his land sufficient to support an
indictment if the goods are taken therefrom, not under a claim of right, but with a felonious intent."
[NB: l. The club was held to have possession in the balls enmeshed in grass on the surface of the golf course.
2. The court took account of the fact that the club had positioned a policeman on the precincts to warn off trespassers -
this was held to constitute the animus possidendi. For his apart, Pritchard J expressed himself as follows:
"Before it can be said that the members did acquire such a possession of the balls, I think it must appear from the facts
found that they intended to exclude others from interfering with the balls, and that they had over them a degree of
power which was sufficient for the purpose of giving effect to such intent. In my judgment, it is clear on the facts that
the members did so intend and had such power."
It seems then that there are cases supporting both views. It would appear that the preferable statement of the law in
this regard would be, namely that whether the owner of the land is in possession of chattels found loosely on the land
depends on whether he intends and has the power to exercise physical control over them. If they are under or attached
to the land, this will be presumed; if, on the other hand, they are loose on the land, the nature of the chattel, the extent
of public access to the land, whether the owner occupies the land, and other like factors will be relevant in deciding
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whether the owner of the land has the necessary animus and factum to be said to be in possession of them when
found.
RIGHT TO IMMEDIATE POSSESSION
As noted already, the plaintiff in an action in conversion must prove cither that he was in possession of the chattel at
the time of the interference or had a right to immediate possession of it. By right to immediate possession, we mean
that the plaintiff must be unconditionally entitled to assume possession of the goods if he so wishes. Such an
unconditional right to possession is sufficient to ground an action in conversion. Thus, in Lord v. Price, the plaintiff
bought two lots of cotton at an auction under conditions which required him to pay a deposit at the time of the sale
and the balance immediately after and before delivery. The Plaintiff paid the deposit but did not pay the residue of the
purchase money and left the cotton in the field where the auction had been held. On the same day, he removed 112 of
the lots. When he went later to take the rest it was gone, removed by the defend mistakenly. The plaintiff sued for
alleged conversion. The learned assessor dismissed the plaintiffs action on the ground that the vendor's lien for unpaid
purchase-money prevented the plaintiff from maintaining trover and gave leave to the plaintiff to move the Court of
Exchequer for a new trial. A rule having been accordingly obtained, t was held (per Bramwell B. and Amphlett B) that
the rule must be discharged on the grounds that the action cannot be maintained without a right of present possession
in the plaintiff. That right was in the vendor who was entitled to retain possession of the goods until the balance had
been paid. The vendor could have maintained the action but not the plaintiff.
In conversion cases based on sale then, it would seem that a buyer under a sale transaction not involving credit has no
sufficient interest to sue unless he has paid the purchase price. Where however the goods are sold on credit, there is no
seller's lien and the plaintiff may then sue. This rule involving credit sales was developed in Bloxam v. Sanders. The
defendant, a hop-merchant, on several days sold various parcels of hops to B by contract. The usual time for payment
in the trade was the second Saturday subsequent to the purchase. B did not pay for the hops at the usual time and the
defendant gave notice that unless they were paid for by a certain date they would be resold. They were not paid for
and the defendant resold a part with B's consent. B afterwards became bankrupt. The defendant then sold the rest
without the assent of B or his assignees (the plaintiffs in this case). The defendant delivered accounts of sales of the
hops sold without B's consent and charged B warehouse rent and commission. The hops were stated to have been sold
for B. Apart from the hops bought from the defendants, B
had also placed some in their warehouse for sale by them. Some of that and the one bought from the defendants were
left in the warehouse. B's assignees demanded these from the defendants and they refused to deliver them.
Whereupon the assignee brought this action. The jury found that the defendant had not rescinded the contract of sale.
Bayley gave judgment to the plaintiffs in respect of hops not bought from the defendants. As regards those bought
from them, he held that an action in conversion will not lie. This is because although a vendee of goods acquires a right
of property by the contract of sale, yet he does not acquire a right of possession to the goods until he pays or tenders
the price.
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"Where goods are sold and nothing is said as to the time of the delivery, or time of payment, and everything the seller
has to do with them is complete, the property vests in the buyer, so as to subject him to the risk of any accident which
may happen to the goods, and the seller is liable to deliver them whenever they are demanded upon payment of the
price; but the buyer has no right to have possession of the goods till he pays the price. ... If the goods are sold on credit,
and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession,
and the right of possession and the right of property vest at once in him; but his right of possession is not absolute; it is
liable to be defeated if he becomes insolvent before he obtains possession.
MENTAL STATE REQUIRED FOR LIABILITY IN CONVERSION
In Simmons v. Lillystone, we find the following statement of principle by Baron Parke:
"... in order to constitute a conversion, there must be an intention of the defendant to take to himself the property in
the goods, or to deprive the plaintiff of it. If the entire article is destroyed, as for instance, by burning it, that would be a
taking of the property from the plaintiff and depriving him of it, although the defendant might not be considered as
appropriating it to his own use. In this case, nothing is done but cutting the timber, and by accident, it is washed away
by the river ... we think that does not amount to conversion."
The basic rule then is that conversion is based on intentional conduct. Negligently interfering with a chattel is not
enough. There is no need for an intention on the part of the defendant to consciously do wrong. It is enough that the
defendant did die act intentionally, which is inconsistent with the true owner's right to possession. Ignorance and
accidents are thus no defences to conversion. That is to say the defendant must do intentionally the act which the
plaintiff relies on as conversion — not that the defendant intends to commit conversion.
Williams v. Geese illustrates the view that negligence does not constitute conversion. This was an action for trover of a
coat and pantalons. The defendant kept a public house at Oxford frequented by fanners. The plaintiff's clothes, packed
in a box, were deposited in the defendant's kitchen behind the settee by a person who said the box was to stay till
called for. The box was never seen again by the plaintiff but when he inquired for it, the defendant said "I suppose it is
behind the settee." The court gave verdict for the plaintiff with leave for the defendant to move to enter a non-suit
instead, on the ground that there was no evidence of conversion. A rule nisi was obtained and was subsequently made
absolute. In a similar action by a sister of the plaintiff against the defendant, it was proved that the defendant received
parcels for carriers; that the parcels were placed behind the settee and when the parcel in question was asked for the
defendant's wife said: "my husband has sent it, no doubt, by Croft the Carrier: he has a bad memory, it is a pity you did
not speak to me." Verdict was given for the defendant. The plaintiff moved for a new trial on the ground that the wife's
language showed that the defendant had interfered by giving directions, which would amount to conversion. The court
rejected this contention. In the opinion of the court, the evidence disclosed only negligence and that will not support
an action in conversion.
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Ashby v. Tolhurst is to the same effect. Here the owner of a motor car left it in a private parking ground. On payment of
one shilling, he received a ticket containing a receipt for the one shilling followed by a provision:
"The proprietors do not take any responsibility for the safe custody of any car or articles nor for any damage to the cars
or articles however caused ... all cars being left in all respect entirely at their owners' risk."
When the owner returned for his car, the attendant told him that he had just given it to the owner's friend. The man
who had so obtained the car had neither the key nor the ticket. The car was never recovered. The owner brought this
action against the car park proprietors for damages, among others, for conversion by misdelivery. The county court
judge found for the plaintiff and the defendant appealed. It was held (per Greene MR, Romer and Scott L.JJ) that:
The relation between proprietors and car owner was that of licensor and licensee; therefore the proprietors came
under no liability whatsoever. No possession could therefore pass to the proprietors.
The attendant's act did not amount to misdelivery.
Even if a contract of bailment could be inferred and the act of the attendant constituted misdelivery, the proprietors
were relieved of all liability by the conditions.
No term could be implied that no ticket, no parting with car.
This case is authority for the proposition that negligence will not constitute conversion.
STRICT LIABILITY
Liability in conversion is strict i.e. no need to prove fault on the part of defendant. This is illustrated by the decision in
Rollins v. Fowler, B fraudulently obtained cotton from F. H (a cotton broker who was ignorant of B's fraud on F)
purchased it in good faith from B in the belief that M, one of his ordinary clients, would accept it. M did afterwards
accept it. H received only a broker's commission from M. It was held that H bought of B as a principal and by
transferring to M had committed conversion against F the true owners:
"Any person who, however, innocently obtains possession of the goods of a person who has been fraudulently deprived
of them and disposes of them, whether for his own benefit or that of any other person, is liable in conversion."
Cleasby J said robustly at 639 that:
"... the liability under it (i.e. conversion) is founded upon what has been regarded as a salutory rule for the protection
of property, that persons deal with the properly in chattels or exercise acts of ownership over them at their peril."
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See also Kabbara Bros. Transport v. Anin Here the plaintiffs' vehicle, at the instance of the first defendant (judgment
creditor), was seized by a deputy sheriff, and sold by the second defendant (auctioneer) to the third defendant, a bona
fide purchaser. The vehicle did not belong to the judgment debtor. Counsel for the second defendant objected to the
action on the ground that the second defendant was acting as agent for the deputy sheriff who is an officer of the
court. Counsel for the third defendant objected on the ground that his client bought as an innocent purchaser for value.
Edusei J (as he then was) overruled the objections. In his view:
"There had been an adverse dealing with the plaintiffs' property in the vehicle with the result that the plaintiffs have
been deprived of the immediate use and enjoyment of the said vehicle. Any person dealing adversely with the property
of , the plaintiffs may have to answer his claim and the action of trover or conversion against any such person."
Dr. Date-Bah, JSC has underlined the point more recently in YOUNGDONG INDUSTRIES LTD v. RORO SERVICES, [2005-
2006] SC GLR 810 at 841 thus:
….conversion is a tort of strict liability. In other words, if an act amounts to
conversion, it is irrelevant to the liability of the tort feasor whether he or she is aware of that fact or not or is at fault.
SUBJECT MATTER OF CONVERSION
Types of property which can be converted traditionally were those based on the fiction of "losing and finding." Only
tangible property i.e. chattels could be lost and found and therefore form the subject mailer of conversion. For
example, land could not be lost or found, so could not form the subject matter of conversion. So also choses in action
could not form the subject matter of conversion. Commercial convenience and business exigencies however, dictated a
review of this fiction. Thus, it is that intangible properly or choses in action, if represented in the ordinary course of
business by a special
written document (e.g. stocks, bonds, bills, the value of a cheque), were added to the subject matter of conversion.
Conversion of the document is taken as conversion of a chattel equal in value to the face value evidenced by the
document. In Ghana, an even higher inroad has been made into the rule that only tangible property can form the
subject mater of conversion. In De Wills Archbold v. C.F.A.O.. Hayfron-Benjamin J (as he then was) held that a musical
composition which had not even been reduced into writing had been converted. The law in this area was further
developed in Hartley v. Ejura Farms?
CONVERSION IN RELATION TO BAILMENTS
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A bailee of goods is considered as having sufficient possession of chattels in his charge to enable him sue. If the
bailment is at will the bailor may also sue. The principles governing this area of the law were discussed in Penfold. Here
the law distinguishes between a voluntary and an involuntary bailee. If goods are delivered into the possession of a
person whom the law characterises as an involuntary bailee (a person who comes into possession of a chattel through
no act of his own and without his consent), then if that person lakes reasonable steps to restore the goods to the one
he honestly believes to be the true owner, or an accredited agent of the owner, and if the goods are as a result of this
honest mistake misdelivered to a person other than the true
owner, the law will absolve the involuntary bailee provided he was not negligent. But if he disposes of the goods
otherwise, he will be liable. Two cases throw light on this last point. The first is Hiort v. Bott: The plaintiffs sent the
defendant an invoice for barley, which staled that the bailey was bought by the defendant from the plaintiffs through G
as a broker and also a delivery order which made the barley deliverable to the order of the
consignor or consignee. The defendant had not in fact ordered any barley from the plaintiffs. G called on the defendant
who showed him the documents and told him it was a mistake. G said that it was, and asked the defendant to endorse
the order to him, for the purpose, as he said, of saving the expense of obtaining a fresh delivery order. The defendant
indorsed the order to G, who got the barley from the carriers and then absconded, hi an action for trover for the bailey,
the jury found that the defendant had no intention of appropriating the barley to his own use but indorsed the order
for the purpose
of correcting what he believed to be an error and returning the bailey to the plaintiff. It was held that trover will lie. The
defendant, by indorsing the order for G, did an unauthorised act and deprived the plaintiff of their property.
Elvin & Powell v. Plummer Roddis & Co. The plaintiffs were rain-coat manufacturers. X entered their ware-house and
ordered £350 worth of rain-coats. X asked that the goods be sent to the Brighton branch of the defendants. X then sent
a telegram to this branch which read: "Goods dispatched to your branch in error. Sending van to collect." He then sent
his accomplice in a van to collect them. The accomplice
handed in a trade card of the plaintiffs. The defendants, after making reasonable inquiries, gave him the rain-coats. X
and his accomplice were never seen again. The plaintiffs sued on two counts: 1. That the defendants were bailees and
liable because they were negligent; and 2. conversion. Hawke J rejected both claims because, according to him, in the
case of count one, the defendants had not been negligent. On count two, the plaintiffs' counsel admitted that no
evidence existed that the defendant intended to deny the plaintiffs' right in the goods or to assert any light inconsistent
with it. But ordinarily this should not absolve the defendant because, in Hiort v. Bolt, the jury expressly found that the
defendant in signing the order had no intention of appropriating the barley to his own use. He distinguished Hiort v.
Bott from the present case on the grounds that here the defendants were involuntary bailees (I.B.). So no liability.
SPECIFIC EXAMPLES OF CONVERSION
CONVERSION BY REFUSAL TO SURRENDER ON DEMAND
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If a person in possession of the plaintiff's chattel refuses to hand it over on demand, this constitutes conversion. The
defendant, however, must still be in possession at the time of the demand. The law allows a person to investigate
within reasonable time to ascertain the title of the person demanding. Therefore withholding for a reasonable time to
investigate will not amount to conversion under this head. Demand and refusal is therefore only evidence of
conversion.
DENIAL OF ACCESS TO PLAINTIFFS' TITLE
Conversion can be committed by denying to a plaintiff the right to have access to his own chattel. However, the act
must constitute an absolute denial and repudiation of the plaintiffs' rights. The principle can be illustrated by the
decision in Oakley v. Lyster. The plaintiff-respondent, a demolition contractor, bought and undertook to clear away an
aerodrome which had become useless after the armistice. In consequence, he became entitled to about 8000 tons of
hard core and tar macadam. To clear the stuff from where it was, he rented a space of three and half acres of land on
die opposite side of the road and there deposited the stuff. He sold a large portion of it but had still at the material time
about 4000 tons left. While his tenancy of the three and a half acres was still subsisting, the defendant-appellant
bought the freehold of the property on which they were. The defendant-appellant convinced himself that he had an
immediate right to the area covered by the tenancy as well as the stuff. So he refused to let the plaintiff take his stuff.
The plaintiff sued in conversion and judgment having been given to him, the defendant appealed. It was held (Scrutton,
Greer & Slesser L.JJ) that the appeal must be dismissed. It was clear to the judges that the appellant was exercising
dominion over the stuff inconsistent with the rights of the true owner and with the intention of denying the plaintiff's
rights over them.
The above case may ‘be contrasted with England v. Cowley where a statement that goods arc not to be removed until
rent is paid was held by a majority of the court not to amount to an absolute interference with the plaintiffs' rights and
therefore not conversion. On this point of partial or absolute denial, see also the decision in Simmons v. Lillystone
where denials were deemed partial and therefore no conversion was committed.
Contrast England v. Cowley with the Ghanaian case of African Drug Co. v. Kumasi City Council44 In this case the
plaintiffs were licensees of a store at Kumasi market owned by the defendants. Because the plaintiffs were in arrears of
rent, a servant of the defendants locked them out of their store, thus preventing their access to documents in the store
which included an import licence for drugs. Because of the plaintiffs' failure to gain access to this licence they were
unable to take delivery from the Customs Department of the drugs and the Department eventually sold them at a
public auction as unclaimed goods. On these facts, Mensa Boison J (as he then was) said:
"The defendants' act of locking out the plaintiffs was found wilful, and evinced an intention to exercise dominion over
whatever chattels were in the store, by the refusal to hand over the keys initially. The defendants must suffer the risk
that the chattels included [the import license], which by its peculiar nature may be said to represent the consignment
of drugs. I find the defendants were guilty of conversion of the [import licence.]"
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Thus Mensa Boison J 'as he then was) held a non-absolute denial of access to the plaintiffs' documents to I e
conversion.
Wansborough &pnor. v. Maton is an example of a situation in which the denial of access was absolute. The plaintiffs
were tenants of the defendant. They erected a barn on the land. After the expiration of the tenancy, they left the land
and wanted to take away the bam. The defendants refused unless they agreed with him on another matter in dispute.
Afterwards the plaintiffs sent people to bring the bam. The defendant was on the premises at that time; he sent the
men away and locked the gates after them. The plaintiffs then brought the suit for trover. It was held that the
defendant was liable since the bam was not a fixture and could therefore not be considered as part of the freehold.
Detinue
Any legally unjustified detention of a plaintiff's goods constitutes detinue. The plaintiff would have to prove that he had
a right to immediate possession and that the defendant refused to hand them over on demand. Thus expressed, it
becomes coterminous with the tort of conversion and is embraced by it. Generally, therefore, whenever C lies, D will
also be available. The difference lies in the fact that, in detinue, even where the defendant no longer has the goods in
his possession at the time of the demand, he is liable to the plaintiff, unless he can show the loss was accidental. On
this last point, see the case of Houghland v. R.R. Law (Luxury) Coaches Ltd. It is also a defence in detinue if the
defendant can show that he took possession of the plaintiff's goods on grounds of necessity see Sorrel v. Paget} and
General & Finance Facilities Ltd. v. Cooks Cars.
Also detinue differs from conversion in the areas of remedies as Diplock J said in General & Finance Facilities Ltd. v.
Cooks Cars. Conversion is an action in personam. The action in detinue is in rem. Conversion is thus for mere pecuniary
compensation but detinue may afford: (a) the value of the thing as assessed; (b) specific restitution or else value plus
damages for its retention; and (c) specific restitution and damages for its detention. Detinue also entitles the plaintiff to
the issue of a writ for delivery. Relief (a) is the usual remedy, for relief (b).
In conversion the value of the goods is assessed as at the time of the Conversion. But, in detinue, it is assessed as at the
time of the judgment. This has a great commercial value; for the market price of the goods may be higher at the time of
judgment. Cf Tabury v. GCB where damage to fish that had been unlawfully detained was assessed as at the time of
detention, not of judgment. The decision here was given clearly per incuriam.
The Supreme Court of Ghana (per Hayfron - Benjamin) in STANDARD CHARTERED BANK (GHANA) LTD. v. NELSON,
[1998-1999] SC GLR 810 at 822 brought out the difference between CONVERSION and DETINUE as follows:
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"We think the confusion ...arises from the difficulty of counsel and the judges in appreciating the thin but clear line of
distinction between the torts of detinue and conversion. In the former, the action is for restitution intergrun, and
damages may be exacted on account of the special quality of the chattel. In the latter, the dealing with the chattel is
unlawful and the action is for the recovery of the chattel or its value together with damages for consequential loss
where so warranted or indicated".
This distinction detennines the measure of damages between the two torts. Date-Bah, JSC put it in the YUNGDONG
INDUSTRIES case thus:
'the normal measure of damages conversion is the value of the goods converted, together with any consequential loss
which is not remote. In contrast, the normal measure of damages for detinue, which lays emphasis on the return of the
goods is the loss arising through the detention of the goods, in addition to the value of the goods, where the court has
not ordered their return'
Advantage of detinue over conversion Advantage of detinue over conversion may be summarised thus:
(i) The plaintiff can sue in detinue, even though the goods are no longer in the
possession of defendant;
(ii) the plaintiff can obtain specific restitution of his goods in detinue (important when, the article is of symbolic
significance);
(iii)the plaintiff is entitled to the value of the goods as at the time of judgment (can take account of inflation).
(iv)damage for loss of goods can also be claimed by the plaintiff separately from the value of the goods.
Advantage of conversion over detinue
Where the good? depreciate in value, it will be wise to sue in conversion so as to claim value as at the date of the
conversion.
Defences to intentional torts to person and

property
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Mistake and inevitable accident
1. Inevitable accident
This defence refers to actions where the defendant did not act either intentionally or negligently. Sir Frederic Pollock
said of inevitable accident:1 "An accident not avoidable by any such precautions as a reasonable man doing such an act
there and then could be expected to take." The onus of proving that the defendant acted intentionally or negligently is
today on the plaintiff. In Fowler v. Learning: in an action for damages for trespass to the person, the plaintiff alleged
simply "that the defendant shot the plaintiff and that by reason thereof the plaintiff sustained personal injuries and
suffered loss and damage. The defendant pleaded that the statement of claim was bad in law and disclosed no cause of
action against him on the ground that it did not allege that the said shooting was intentional or negligent. The issue for
detenination was on whom fell the "onus of proof of the negligent nature of the shooting; the plaintiff or the
defendant? Held:
No trespass if the injury to the plaintiff, though the direct consequence of the act of the defendant, was caused
unintentionally and without negligence.
Onus of proving negligence, for unintentional trespass, lies on the plaintiff.
So the plaintiff must allege and prove either that the defendant acted intentionally or negligently or plead facts which
show that he acted negligently. Where an occurrence could not have been avoided by the exercise of reasonable care
on the part of the defendant, i.e. inevitable, then there is no trespass, if not done intentionally: see Letang v. Cooper.3
So that inevitable accident is not a defence as such but rather than an important element of trespass is missing,
example: A hits you with his car because of a defect in the steering wheel, which no amount of care would have
prevented, he will not be liable; for, in this case, he neither acted intentionally nor could he have avoided doing so by
taking precaution.
2. Consent
As a general proposition of law, anyone who consents to an act cannot complain of trespass: volenti non fit injuria.
Consent may be given expressly by words or inferred from conduct, e.g. a boxer cannot complain when he is hit in the
ring. Also a footballer cannot complain if he is kicked in a match; but if the opponent does something completely out of
the game, e.g. going out for the eye, no consent can be said to have been given to that.
The consent which will be a defence must relate to the act complained of. It must be freely given. In the case of
children, consent by parents or guardians will be enough. Consent may be vitiated by fraud, where the fraud relates to
the real act of the defendant. But this is not so where the fraud merely relates to a collateral aspect of the defendant's
act.
The decision in Hegarty v. Shine illustrates this point.4 In this case, the plaintiff and the defendant had been living for
two years in a state of concubinage and the defendant being infected with venereal disease, of which the plaintiff was
ignorant, had sex with and infected her with the venereal disease. In an action by the female plaintiff for: (a) breach of
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promise of marriage; and (b) assault of the plaintiff and infecting her with venereal disease, the trial judge directed the
jury that:
"As a matter of law, an assault implied an act of violence, committed upon a person against his or her will and that as a
general rule, when the person consented to the act, there was no assault; but that if the consent was obtained by the
fraud of the party committing the act, the fraud vitiated the consent, and the act became, in view of the law an assault,
and that therefore if the defendant knowing that he had venereal disease, and that the probable and natural effect of
his having connection with the plaintiff would be to communicate to her venereal disease, fraudulently concealed from
her his condition, in order to induce, and did thereby induce her to have connection with him; and if but for that fraud
she would not have consented to have had such connection; and if he had with her the connection so procured and
thereby communicated to her such venereal disease, he had committed an assault, and one for which they might on
the evidence award substantial damages."
It was held that this charge amounted to a misdirection. Sexual intercourse with the consent of the female cannot be
an assault. There was no deceit as to the nature of the act to be done, but a lengthened cohabitation of the parties, and
deliberate consent to the act or acts out of which the cause of action had arisen. On the facts, the plaintiff consented to
have sexual intercourse with the defendant, who then, but without her knowledge, was affected with venereal disease.
In law, the consent proved extends to both the act and its consequence. Per Palles, C.B.
"An action is brought for trespass to the person. That is denied and accordingly the plaintiff must show that an assault
was committed. The evidence proves that the act was done by the consent of the plaintiff and therefore that she was
not assaulted. In order to avoid the consent, she relies upon fraud. She asks the court to relieve her from the
consequences of a consent which she in fact gave. This is not open to her, because if the contract be an immoral one,
neither party can be allowed to enter into the consideration for it, whether to sustain the cause of action or to avoid
the consent..."
Cf. R. v. Williams: In this case, the appellant was the choirmaster at a Presbyterian Church. It was arranged that he
should teach two girls, (one sixteen years, the other nineteen) singing and voice production. On two occasions when he
gave lessons he had sexual intercourse with, the sixteen year girl and, on two other occasions, committed indecent
assault on the nineteen year old. He was charged with rape, convicted and he appealed arguing that he ought not to
have been charged on the evidence with rape .The evidence established that on the first day he told the sixteen she
was not singing as she should and was not getting her notes properly and told her to lie down on a settee
He then removed a portion of her clothing and placed upon the lower part of her body an instrument which was
defective anyway and could not have been affected by the breathing. He asked the girl to take a deep breath thrice. He
looked at the instrument and purported to write down something in a book. He then dropped on her and proceeded to
have sex with her. She asked: "What are you doing?" He said:
"It is quite alright, do not worry. I am going to make an air passage. This is my
method of training. Your breathing is not quite right and I have to make an air
passage to make it right. Your parents know all about it, it has all been arranged: before God, Vera, it is quite alright I
will not do you any harm." '
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With the second girl, on the same pretext, he fingered her saying he was making an opening for the air to pass. The girl
submitted, believing what he told her. She did not know what he did was wrong; nor did she know he was sexing her.
Held dismissing the appeal, that the consent was fraudulently obtained. So no consent
Consent obtained by show of authority, threat of force or actual application of force is not consent in law, e.g. a
policeman or woman who tells plaintiff to follow him or /her to the station, has no defence, if plaintiff goes because of
show of authority
The authority is Latter v. Braddell.The plaintiff was a housemaid of Mrs B On returning from holidays, Mrs. B accepted
the evidence of the chairwoman that the plaintiff was pregnant. The plaintiff denied that she was. Mrs. B sent for the
doctor to come and examine her. The doctor asked her to undress. She protested and wept but took off her clothes and
submitted to the examination. She was not pregnant but was dismissed all the same. She sued Mr. and Mrs. B and the
doctor. At the trial the judge withdrew from the jury the case against the Bs and the jury found in favour of the doctor
The plaintiff obtained a rule nisi for a new trial. In the Common Pleas Division, Lindley J upheld his own trial decision,
Lopes J dissenting.
On appeal to the Court of Appeal, the Court of Appeal unanimously upheld the decision of Lindley J (i.e. plaintiff lost).
Bramwell, L.J., said:
"Very likely plaintiff thought defendants had a right to have her examined- but the truth is, she submitted to it, and it is
impossible to say the jury were wrong in finding that she submitted. She may have submitted under an erroneous
notion of law, but it was not through fear of violence..."
The decision in this case is questionable because the impact of the employed-employee relationship on the maid's
supposed consent does not appear to have been given sufficient consideration.
If the plaintiff is drunk or otherwise incapable of giving consent, he cannot give consent.
As noted earlier, consent must relate to the act complained of, e.g. Beatty v. lllingworth. The plaintiff who was being
operated on for removal of a diseased ovary, instructed the defendant surgeon: "If you find both ovaries diseased you
must remove neither," to which he replied, as she was going under the anaesthetic, "You may be sure I shall not
remove anything I can help." He removed both ovaries, which were diseased, whereupon her fiancée refused to marry
her. Hawkins, J., directed the jury that they were still at liberty to infer her tacit consent, and they accordingly found for
the defendant.
This case only shows the law's willingness to be more liberal with doctors to enable them do what they consider best
for patients. However as St. George's NHS Trust v. S shows, it is a trespass to operate upon a pregnant woman who
refuses to allow her child to be born by Caesarean section. And in Airedale NHS Trust v. Bland Lord Keith stated that
instructions that a person, brought to a hospital unconscious, does not want a surgical operation would be effective
unless it was thought not to cover the particular situation or that, if confronted with the reality of the situation, he or
she would change his or her mind. The Court of Appeal stated:
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"Where the patient has given an advance direction before becoming incapable, treatment and care should normally be
subject to the advance directive. However, if there is reason to doubt the reliability of the advance direction (e.g. it
might sensibly be thought not to apply to the circumstances which have arisen) then an application for a declaration
may be made."
3. Self defence
For a defendant to succeed under this defence he must show that he committed the trespass in order to: (1) defend
himself; (2) that in the circumstances it was reasonable for him to do so; and (3) that he used reasonable force.
In Codd v. Cabe: Lord Bramwell held that no more force than was reasonable was used, and therefore there was no
trespass. But this is no licence for revenge. If after the first act of violence against a defendant, there is no reasonable
threat of further violence, a trespass will be actionable.
Cockroft v. Smith: The plaintiff sued for trespass for assault, battery, and mayhem. The defendant pleaded self defence.
It was admitted to be a good defence. But it was argued that the act which was claimed to be in self-defence must not
be disproportional to the initial assault, e.g. for every assault, it is not reasonable to bang a man with a cudgel. The facts
were that the clerk of a court sued an attorney for biting off his forefinger in a scuffle in court. The evidence showed
that the plaintiff first tilled the form on which the defendant sat. Then second, the plaintiff ran his finger towards
defendant's eye, who bit it off. Holt C.J. held that, in itself, it was not a defence that the
plaintiff first pointed his finger towards the defendant's eyes, for a man must not "in case of a small assault, give a
violent or unreasonable return."
What is reasonable force is a question of fact to be decided in each case. E.g. Street's example:
A pins Miss B to the wall and repeatedly kisses her against her will, and the only means by which Miss B can compel A
to desist is by lacerating his wrist with scissors. Does she have any defence to an action of trespass by A?
4. Defence of the person of another
A servant may justify a battery in defence of his master and vice versa. The illustrative case is Barfoot v. Reynolds which
was an action of trespass, assault and battery against Reynolds and Westwood. Reynolds in his defence pleaded assault
on his son, while Westwood pleaded that he was a servant to Reynolds and that the plaintiff having assaulted his
master in his presence, he, in defence of his master struck the plaintiff. The plea was held ill, for the assault on the
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master might be over and the servant cannot strike by way of revenge but in order to prevent injury. The right way of
pleading is that the plaintiff would have beaten the master if the servant had not intervened.
The second case Seaman v. Cuppledick was an action for assault and battery. The defendant justified no action on the
grounds that he had acted in defence of his servant; that the plaintiff assaulted his servant and would have beaten him
but for his intervention. The court held:
"A man may use force in defence of his goods, if another will take them; and so if a man will strike your cattle, you may
justify in defence of them; and so a man may defend his son or servant but he cannot break the peace for them: but if
another does assault the servant, the master may defend him and strike the other, if he will not let him alone."
Cf. Leward v. Basely, an action for assault and battery on the wife of the plaintiff by the defendant husband and wife.
The defendant pleaded that the plaintiff first assaulted his wife. The plaintiff replied that the defendant was going to
wound her husband. To this the defendant demurred. The court held that a wife might justify an assault in defence of
her husband. So might a servant of his master but not a master of his servant because he might have an action per
quod servitium amisit. If the defendant was holding his hand to strike the husband, the wife might make an assault to
prevent the blow.
These cases seem to limit the right to use force to members of one's family. But there is no reason why we should read
them so narrowly. A total stranger can also be defended against felonious acts. We may support this point with the
case of Handcock v. Baker.16 Here the plaintiff brought action for trespass to his house and assault on him as well as
false imprisonment. The defendants averred that they entered the house and took hold of the plaintiff to prevent him
from murdering his wife. It was held that this was justification enough, i.e. good defence.
DEFENCE OF ONE'S PROPERTY
A person may use reasonable force to defend land or chattel in his possession against any person threatening to
commit or committing trespass to the property. But if the threat is not imminent or has passed, force is not justified.
The principle is illustrated by Creswell v. Sirl. In that case the plaintiff's dog and another dog chased sheep in a field at
night, and as a consequence, several of the sheep aborted. The defendant, to whose father the sheep belonged, went
into the field and thinking the dogs were fierce and wild and that it would not be safe to catch hold of them, shot and
killed the plaintiffs dog, when it had left the sheep and was coming towards him. The plaintiff sued for trespass to the
dog. The county court held that the defendant's defence failed because die dog had stopped attacking the sheep at the
time he shot it. The defendant appealed. The appellate court held that the test applied by the county court judge was
too narrow. The proper test, per Scott L.J. should be:
"The onus of proof is on the defendant to justify the preventive measure of shooting the dogs. He has, by proof, to
establish two propositions, but each proposition may be established in either of two ways:
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(1) That at the time of shooting, the dog was either
a) actually attacking the animals in question, or
b) if left at large would renew the attack so that the animals would be left presently subject to real and imminent
danger unless renewal was prevented.
(2) That either —
a) there was in fact no practical means, other than shooting, of stopping the present attack or preventing such
renewal, or
b) that the defendant, having regard to all the circumstances in which he found himself, acted reasonably in regarding
the shooting as necessary for the protection of the animals against attack or renewed attack."
Bird v. Holdbrook is a further illustration of the principle. In this case, the defendant, for the protection of his garden of
flower-roots and tulips, some of which had been stolen, set a spring gun, without notice, in a walled garden, at a
distance from his house, with the express intention of catching the thief. The plaintiff who climbed over the wall in
pursuit of a stray fowl was injured. It was held that the defendant was liable in damages because the method used to
protect the garden, i.e. the spring gun, in the circumstances was not reasonable.
Clearly then the use of force to protect interests in property is harder to justify than use of force in self defence. So, if a
guy is trespassing on your land, you are not entitled to shoot him with an arrow, as a way of defending your land.
NECESSITY
One may justify a trespass on the grounds of necessity. Our authority is Mouse's case. ' It was an action for trespass
brought by Mouse for a casket and a hundred and thirteen pounds. The facts were that the ferryman of Gravesend
took 47 passengers into his barge to London, among whom was Mouse. There was a big storm which threatened both
passengers and luggage. So the luggage were thrown into the water to save the men. It was held:
In case of necessity, for the saving of the lives of passengers, it was lawful for the defendant, being a passenger, to cast
the casket of the plaintiff out of the barge with the other things in it.
If the ferryman should overload the ferry, it is a valid defence in such circumstances as above for any passenger to cast
things out of the barge and the ferryman will be liable to the luggage owners for the loss of their goods for it was his
fault. But where the danger is the result of an act of God, e.g. storm, then everyone ought to bear his loss.
ABATEMENT OF NUISANCE
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It is a defence to an action in trespass that it was to abate a nuisance: see Lemnion v. Webb.21 In that case it was said
that the owner of land which is overhung by trees glowing on his neighbour's land is entitled, without notice, if he does
not trespass on his neighbour's land, to cut the branches so far as they overhang, though they have done so for (a long
time) more than twenty years. The facts were that the appellant and the respondent were adjoining landowners. On
the appellant's land near the boundary were several large old trees, whose branches overhung the respondent's land
and had done so for more than 20 years. The respondent, without giving notice and without trespassing on the
appellant's land, cut off a number of branches to the boundary line. The appellant sued him, inter alia, for damages for
trespass. It was held per Lord Macnaghten:"
"I think it is clear that a man is not bound to permit a neighbour's tree to overhang the surface of his land, however
long the space above may have been interfered with by the growth of the tree. Nor can it, I think, be doubled that, if he
can get rid of the interference or encroachment, without committing a trespass or entering upon the land of his
neighbour, he may do so whenever he pleases, and that no notice or previous communication is required by law."
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DISCIPLINE
Trespass might also be justified on the grounds that it was to discipline the person complaining or on whose
behalf the complaint is lodged provided tire force used is reasonable. Ash v. Ash, was an action for assault,
battery and false imprisonment. According to the facts Lady Ash pretending that her daughter, the plaintiff, was
troubled in mind, brought an apothecay to give her physick; she was bound and would have been compelled to
lake physick and was confined for about two or three hours. The jury gave her £2000 damages. On a motion for a
new trial because of the excessiveness of the damages, the motion was granted. In other words, while it was
agreed that trespass may be justified on grounds of discipline, on this occasion the defendant would fail because
excessive force was used. Also Ryan v. Fildes& Or, the plaintiff, a schoolboy of 10 years, attending a non-
provided school was by reason of indiscipline boxed on the ear by his schoolmistress. As a result of the blow
which was found not to have been a violent one, the boy became deaf in one ear. The class in which the boy was
working at the time of the incident consisted of 46 boys. He sued for damages, for assault, i.e. battery. It was
held, per Tindal J, that he must succeed against Fildes. What she did exceeded reasonable and proper
punishment.
"The blow struck was moderate in the sense that it was not a violent blow, but, as punishment, it was not
moderate punishment, because not proper way of punishing a child to strike it on the head or the ear.
"It appeals ... by the Law of England, when a parent sends his child to school, he delegates to teachers at the
school the power to inflict reasonable and moderate corporal punishment when required, in the same way as
he, as parent, would have power to inflict moderate and reasonable corporal punishment in a proper case and
that he delegates to the teacher the taking of such steps as arc necessary to maintain discipline with regard to
the child committed to the teacher's care. ..."
Finally, we may look at Hook v. Cunard. Here, the plaintiff sued for damages for false imprisonment and indecent
assault. It seemed that he was confined on the allegations of the daughter of a passenger on a ship. The
evidence did not suggest that the captain of the ship believed in the allegation but confined the plaintiff to
please the passenger and to avoid unwelcome publicity. It was held, per Slade J., that the master of a merchant
ship is justified at common law in arresting and confining in a reasonable manner and for a reasonable lime any
sailor or other person on board his ship only if he has reasonable cause to believe, and if he docs in fact believe,
that the arrest and confinement arc necessary for the preservation of order or discipline, or for the safety of the
vessel or persons or property on board. This ruling, it must be noted, will apply equally to the driver of a vehicle
or the pilot (captain) of an aircraft.
Lane v. Holloway. ' Is contributory negligence a defence to trespass? Yes, in Barnes v. Naye
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Nuisance
Nuisance may take one of two forms, a public or private nuisance. Public nuisance protects public health, decency,
convenience and safety. This in reality is a crime and is taken care of in sections 285-298 of the Criminal Code, 1960
(Act 29). It covers matters such as: (a) selling unwholesome food; (b) hindering burials; (c) carrying on a noxious trade;
(d) drunken, riotous or disorderly conduct; (e) throwing rubbish in the streets; and (f) displaying one's naked body in
public.
What is public nuisance was explained in A-G v. P.Y.A. Quarries Ltd.1 hi this case, the quarry owners so conducted
their operations that neighbouring householders were discomfited by vibrations from explosions and by the dust
which emanated from the quarry in dry weather. There was evidence that nuisance from the vibration and dust could
be avoided by the exercise of proper care. It was held that the vibrations and dust were a public nuisance and an
injunction had been properly granted to restrain the quany owners from carrying on their business in such a manner
as to occasion a nuisance to her majesty's subjects by dust or by vibration. Here Lord Denning said that: "public
nuisance must be referable to the generality of Her Majesty's subjects. So widespread in its range, so indiscriminate in
its effects .... that it becomes the responsibility of the whole community." So an act becomes public nuisance when its
effect is on the public as a whole rather than on one individual.
RELEVANCE IN THE LAW OF TORTS
Public nuisance, may lend itself to an action in torts by an individual only if that individual can show that he has
suffered damage over and above that suffered by the public, e.g. if you go and buy food and contract cholera, you can
show you have suffered damage over and above the public and so you must be able to claim. In Southport Corpn. v.
Esso Petroleum the defendants' tanker ran aground in the Ribble estuary and to save life aboard, the master lightened
the ship by jettisoning a large quantity of oil This oil was carried onto the plaintiffs' beach and they spent a great deal
of money to clear it. The trial judge gave judgment in favour of the defendants on the ground that the plaintiffs had
failed to prove negligence. This was approved on appeal to the House of Lords. In the House of Lords, Lord Denning
said that the term public nuisance covers a multitude of sins, great and small. Public nuisance is not dependent on
user of land. See also Halsey v. Esso Petroleum;3 Tate & Lyle v. Greater London Council.
Both private and public nuisance are based on annoyance and inconvenience. In other words, the constituent
elements are conceptually the same. The difference between them lies in the degree and range of exposure.
PRIVATE NUISANCE
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Private nuisance lies in general for indirect non-trespassory interference being an action on the case. A defendant is
guilty of private nuisance, if he does an unreasonable act which either (a) indirectly causes physical injury to land; or;
(b) substantially interferes with another's use or enjoyment of his land or of an interest in land or both. The crux of
nuisance then is unreasonableness of conduct. Consequently, problems in nuisance really turn on reasonableness. In
determining the reasonableness, the courts look at both the defendant's conduct and its effect on the plaintiff. Note
however that when interference is alleged with a plaintiffs enjoyment, the surrounding circumstances are relevant,
but not so relevant when the alleged interference is with material injury to property.
Some common forms of private nuisance are: (i) noise — excessive tolling of church bells; (2) pestilential smells; (3)
vibrations; and (4) escaping fumes from factories. Private nuisance represents a balancing of conflicting interests, (e.g.
taxi horns, radio music), and the courts are principally concerned with the mutual adjustment of rights. Living in close
communities as we do nowadays, one has to put up with a reasonable degree of nuisance. As was said in Bamford v.
Turnley, per Baron Bramwell: "Those acts necessary for the common and ordinary use and occupation of land and
houses may be done, if done reasonably without risking an action in nuisance e.g. burning weeds, emptying cesspools
and making of noises during repairs." And so in Sedleigh-Denfield v. O'Callagan the boundary between the appellant's
premises and those of the respondents was a hedge and a ditch, both of which belonged to the respondents. Without
informing the respondents, a trespasser laid a pipe in the ditch and some three years later, when this pipe got
blocked, the appellant's garden was flooded. It appeared that one of the respondents' servants had cleared out the
ditch twice yearly. The appellant claimed damages in nuisance. It was held that he would succeed because the
respondents who knew or ought to have known of the existence of the nuisance, permitted it to continue without
taking reasonably prompt and efficient action to abate it. In that case, the flooding was considered as going beyond
what the appellants could reasonably be expected to endure and so it was nuisance.
In determining whether an act constitutes private nuisance, the courts take certain factors into account. We shall
consider these factors seriatim.
(a) The purpose of the defendant's conduct — mental state
If the defendant's primary object in doing an act is to injure his neighbour, then that conduct is in law unreasonable.
Thus in Christie v. Davey, the parties lived in semi-detached houses. The plaintiff gave music lessons and held musical
parties in his house, which annoyed the defendant considerably. Maliciously and for the purpose of vexing and
annoying the plaintiff, the defendant blew whistles, knocked on trays or boards, hammered, shrieked and shouted,
when lessons or parties were in progress in the plaintiff's house. It was held that the interference could be restrained
by injunction, but it would be otherwise, if both parties had been perfectly innocent, i.e. if the interference had been
merely coincidental. This means if a defendant does what he is reasonably expected to do, even if maliciously, he will
not be liable, even if his conduct injures his neighbour.
Compare the above case with Bradford Corporation v. Pickles.8 Here the appellants owned water works and the
respondent owned land from which water flowed naturally on to the ground from which the appellants enjoyed a
valuable supply of water. The defendant commenced operations on his land, which had the effect of discolouring and
diminishing the appellant's water supply and they sought an injunction to restrain his harmful activities which, they
alleged, were actuated by malice and with a view to inducing them to buy the land. It was held that the injunction
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would not be granted because the respondent's action was lawful and no matter how ill his motive might be he had a
right to act as he did. See also to the same effect: Hollywood Silver Fox Farm v. Emmett.
(b) Suitability of the locality
The law realises that it is governmental policy to divide up land for various uses. The courts therefore consider
whether a defendant is carrying out his activity in a place suitable or designated for it. So it may well be a nuisance to
set up a factory in a residential area or set up a stable there or use residential area for prostitution as in Thompson-
Schwab v. Costaki. In that case, the plaintiff lived in a good residential street in the West End of London and the
defendants used a home in the same street for the purposes of prostitution. It was held that this was prima facie
evidence of nuisance, as having regard to the usages of civilised society and to the character of the neighbourhood,
the defendant's activities amounted to an unreasonable interference with the comfortable and convenient enjoyment
of the plaintiff's residence and an interlocutory injunction was granted to restrain it. Or using premises as a sex shop,
see Laws v. Florinplace Ltd. On persistent unwanted phone calls see Khorasandjin v. Bush. Aidoo v. Adjei held that it is
nuisance to operate a chop bar near a residential area! In Ball v. Ray14 it was held that keeping horses in a residential
area was actionable nuisance. But, in Moy v. Stoop, a day nursery was set up in a residential area with its children
weeping. It was held that, prima facie, the crying of the children was not actionable, but if it can be proved that the
children cry as a result of neglect, then it may be actionable nuisance.
What about cockerels crowing at ungodly hours? This question is important because of the keeping of poultry in
homes these days. In Leeman v. Montagu the plaintiff bought a house in an area which was partly rural, but largely
residential. In an orchard which was about 100 yards from the house, the defendant kept some 750 cockerels which
were in the habit of crowing from 2 a.m. until 7 or 8 a.m. This noise made it impossible for the plaintiff to sleep. It was
held, that a nuisance had been proved and the plaintiff was entitled to an injunction to restrain the defendant from
carrying on the business of poultry breeder in this manner. On the question of the importance of sleep, see also Halsey
v. Esso Petroleum. Again, in Sturges v. Bridgman, a confectioner and a physician occupied adjoining premises. In
connection with his business for more than 20 years, the confectioner used two large pestles and mortars and the
noise and vibrations did not seem to the physician to be a nuisance until he built a consulting room at the end of his
garden against the wall of the confectioner's kitchen in which the pestles and mortars were operated. The physician
sought an injunction to restrain the use of the pestles and mortars in such a manner as to cause him annoyance. It was
held that he would succeed. The confectioner could not claim that he was protected by prescription, since until the
consulting room was built there had been no actionable nuisance.
This decision may also be explained in terms of the unarticulated value the court gave to the physician's service to
society as compared to that of the confectioner.
Nature of use to which defendant puts land
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Generally, natural user is not per se conclusive as to reasonable use (Note that, unlike Rylands v. Fletcher the
defendant can put his land to non-natural use so long as his conduct is reasonable). Thus in Matania v. National
Provincial Bank, temporary noise and dust caused by alterations being made to a building were held to be a nuisance
since the interference was substantial. This case also shows that the duration of the unreasonable conduct is not
conclusive. It could be nuisance even if only temporary. Where conduct is inevitable but could be mitigated, it will be
held to be unreasonable if not mitigated. In C.F.C. Construction Ltd .v A.T.C.C., the plaintiff brought an action to
restrain the defendants or their agents from continuing or repeating nuisance by dumping garbage and refuse which
emitted pestilential smells in a quarry adjoining their properties. Justice Crabbe found, as a fact, that the garbage
dumped emitted pestilential smells which amounted to actionable nuisance. In Abotchie v. Saad the suitability of the
locality for the defendant's trade was considered by justice Crabbe as of great importance. The plaintiffs complained
that the defendant installed vibrating machine emitting offensive smells. When the plaintiff complained, the machine
was removed only to be reinstalled later and the defendant then the defendant turned deaf ears to all the plaintiffs’
complaints. The court held that, as the defendant had not proved or adduced evidence to show the suitability of the
locality for his activity he was liable and injunction was granted.
Authorised Acts — Statutory Duties
Can nuisance lie against one under a statutory duty? The law is that where one operates under a statute one must use
reasonable care. Therefore theoretically, a person operating under a statute, may be liable in nuisance. A case in
points is Manchester Corpn v. Farmworth. There is a farmer, the respondent ,sought damages and injunction against
the appellants on the ground of nuisance. The respondent alleged that poisonous fumes were emitted from the
chimneys of generating stations erected by the appellants in pursuance of powers conferred by statute. It was held
that the appeal will be decided in favour of the respondent as the appellant has not shown that they have used all
reasonable diligence in preventing their generating station from creating a nuisance. Thus it is clear that the common
law does not override the statute . It simply requires that for a person discharging a a statutory duty to escape liability,
the person must prove that he or she has carried out the task reasonably.
Nature of the Damage.
As Lord Reid said in Wagon Mound (No.2), recovery of damages in private nuisance depends on foreseeability by the
defendant of the relevant type of damage. Being an action on the case and not a trespass, proof of damage is
necessary. Damage may fall in one or other or both of the following categories: a) it may be material injury to
property:
b) personal discomfort or inconvenience . What is the distinction between sensible material interference with the
plaintiff’s property and personal discomfort or inconvenience? The distinction is discussed hereafter.
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a) In St. Helen’s Smelting Co. v. Tipping the plaintiff bought an estate consist6ing of about 13200 acres near to the
+defendant’s copper smelting works . The vapour from the works proved injurious to the plaintiff trees and crops and
he claimed to be entitled to damage . It was held he would succeed . That the jury was correctly directed that an
actionable injurY was one producing sensible discomfort and that every man unless enjoying rights obtained by
prescription or agreement was bound to use his property in such a way as not to injure that of his neighbour . The law
was not concerned with trifling inconveniences and everything had to be considered from a reasonable point of view.
Here suitability of locality is held to be defence if there is proof of sensible injury to property.e locality is not relevant
factor where property damage is concerned. See also the Canadian case of Schenck v. Province of Ontario.
The basic principles then are:
a) Proof of sensible damage to property;
b) injury must be substantial; and
c) the injury must have diminished the value of the property.
If (c) is proved, it is irrelevant to plead suitability of the locality. As to the meaning of material injury the courts have
not decided whether the test is scientific or ordinarily by reference to the custom of the trade, but see Hunter v.
Canary Wharf Property is not defined either. In practice, however, the courts consider the suitability of the locality
relevant: see Pullback Colliery v. Woodman per Erie Lorebury.
(b) Substantial interference with enjoyment (Personal discomfort or inconvenience)
Where the complaint is in respect of personal discomfort, then such interference must be substantial. The plaintiff,
however, need not prove actual injury to health; in fact, the loss of one night's sleep is sufficient. However, it is not
nuisance merely to operate a power station near a church. So in Heath v. Brighton Corpn. the plaintiffs, the incumbent
and trustees of a church, sought an injunction to restrain the alleged nuisance caused by the defendant's electricity
works which were in the immediate vicinity of the church. It was not alleged that die low hum or noise of the
machinery had led to a diminution of the congregation; the only person who was personally annoyed was the
incumbent. But he was not prevented from preaching or conducting the accustomed services. It was held the plaintiffs
had not shown a sufficiently serious annoyance to entitle them to the injunction which they claimed.
Interference may be substantial even though temporary: see Matania v. Nat. Provincial Bank. Here dust and
temporary noise were held to be a nuisance. See also De Keyser's Royal Hotel Ltd. v. Spicer Bros. Ltd.
Under this head of damage the courts hold the suitability of the locality as important. Nowadays, the courts are
developing a doctrine whereby a defendant guilty of a situation likely to cause injury is likely to answer in nuisance. In
Bolton v. Stone during a cricket match, a batsman drove a
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ball out of the ground and it hit and injured the plaintiff. The ball traveled nearly a 100 yards and cleared a protective
fence which was, in effect, 17 ft. above the cricket pitch and 78 yards from the striker. There was evidence that the
ball had been hit out of the ground on some six occasions during the last 30 years. It was held the plaintiff was not
entitled to damages cither in negligence or nuisance as the probability of such an injury would not be anticipated by a
reasonable man.
Who can sue in nuisance?
The law is that one who has proprietary or other interest in the land may sue. The owner can sue, if he has possession
as well as the tenant. However, a reversioner can sue only if he can show that his proprietary interest in the reversion
has been permanently interfered with. It is doubtful though if a person who is merely in occupation can sue. In Malone
v. Laskey,32 the defendants let a house to a tenant who sub-let it to a company, whose manager resided on the
premises with his wife the plaintiff. The defendants were not liable to do repairs to the house, but, following
complaints to the defendants, they sent two men to put an iron bracket underneath a water tank in the lavatory.
Three months later, due to vibration from machinery in the defendant's premises adjoining the house, the bracket fell
upon and injured the plaintiff. It was held that the plaintiff was without a remedy. Here the plaintiff failed because she
was in occupation but had no interest in the land.
However, in Moss v. Christchurch Rural Council,34 a spark flew from the defendant's steamroller (as it was at the
material time it constituted a nuisance) and the resulting fire destroyed the plaintiff's cottage which was let to a
weekly tenant. It was held that the plaintiff could recover the difference between the money value of his interest in
the property before and after the fire, not the cost of rebuilding. It must be noted that in the above case title was not
discussed.
Who can be sued?
Generally, it is the one (although he may have given up possession) who commits the nuisance, even if done through
servants or agents. He is liable for the acts of independent contractors only if the act done is one which, in its very
nature, involves a special danger of the nuisance being complained of.
In Bower v. Peate33 the parties owned adjoining houses and the defendant employed a contractor to pull down his
and rebuild it. The contractor failed to provide sufficient support during the excavation of the foundations and the
plaintiff's house was damaged. Cockbum C.J. laid down a test for this. His test has been criticised as being too wide.
The occupier liable for nuisance by the independent contractor if from the instructions he gives, a nuisance was likely
to occur.
Acts of trespassers (failure to remedy)
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The House of Lords settled this in Sedleigh-Denfield v. O'Callaghan.'' The rationale here is that an occupier of land
continues a nuisance if, with knowledge or presumed knowledge of its existence, he fails to take steps to bring it to an
end, when he has ample time for doing so and adopts it if he makes use of the structure causing a nuisance. It was
held per Moulton L.J. in British Road Services v. Slater, that a branch of a tree on a land by the road was a continuing
nuisance although the defendants were absolved on the grounds that the defendants having inherited the nuisance
were not liable for the consequences of failing to remedy it until they were aware that it was a nuisance or with
ordinary and reasonable care, should have become so aware.
In Tarry v. Ashton, the defendant was in occupation of a house from the front of which a heavy lamp projected over
the pavement. As the lamp was becoming dangerous, the defendant employed an independent contractor to repair it.
Nevertheless, as a result of the contractor's negligence, the lamp fell down and injured die plaintiff. It was held that
the plaintiff was entitled to damages as the defendant was in breach of his duty to make the lamp reasonably safe.
Prima facie therefore the defendant is not liable if he did not create the nuisance. But, if, in entering the premises, he
knew or ought to have known of it, then he is liable. This applies to patent and latent nuisances. But, even though a
nuisance is patent to the eye, when a landlord enters the premises, he will not be liable if it can be shown that no
reasonable man would have considered it as a nuisance.
Personal injuries
These are recoverable in respect of public nuisance. Private nuisance has no authority, but, in principle, where there is
damage to the person as well as property, then such consequential damage ought to be recoverable.
Defences to nuisance
Prescription: This lies where a defendant can show that he has acquired a right to commit the nuisance. To acquire this
rights he must have committed it for at least 20 years before the action; he must have done it openly, without a show
of force, and without the plaintiff's permission: the maxim is "nee vi, nee clam, nec precario." However this defence is
not available in respect of public nuisance.
Consent: Must not be induced by fraud etc.: see Kiddle v. City Business Properties Ltd..
Statutory authority: (a complete defence) This must be done reasonably though: see Northwestern Water Bd. v. Dept.
of Transport;'10 if a statute authorised an activity, then the defendant will not be answerable for inevitable
interference. But it is for the defendant to prove inevitability.
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hi Haley v. London Electricity Board! the appellant a blind man, on his way to work, tripped over a hammer with a long
handle which the respondents had leaned against a railing to protect pedestrians from an excavation which they had
made. There was no negligence on the pail of the respondents and the defendants were found to have given adequate
warning to people with good sight. It was held that:
"since it was reasonably foreseeable that blind people will pass that way, the defendants had failed to discharge their
duty to take reasonable care not to act in a way likely to injure any person who may reasonably be expected to walk
along the road. Lord Guest said there is ... no authority ... which would compel one to take the view that the obligation
ol those responsible for the safety of foot pavements is restricted to those persons who have normal sight ... they
must have regard to all road users, which includes the blind and other persons." So when a person operates under a
statute, he will only be protected if in discharging his statutory duties he acts reasonably. See also Allen v. Gulf Oil
Refinery Ltd.
Abatement of nuisance
It is in reality a defence to trespass to land, where the defendant can show that he committed the trespass to abate a
nuisance to him. In Lemmon v. Webb43 without giving notice to the appellant and without trespassing on his land, the
respondent cut off some branches of the appellant's trees, which were overhanging his soil. It was held that the
respondent was entitled to do this.
But abatement is a remedy which the law does not favour and the House of Lords said that if there are two ways of
abating a nuisance the less mischievous is to be followed.
Remedies
These are three: damages, injunction and abatement. But it must be borne in mind that injunction is a discretionary
remedy which the court can refuse to grant, even though the plaintiff proves his case.
The plaintiff is entitled to compensation for the damage he has suffered as a result of the nuisance. Thus he may
recover for: (a) physical damage to his property; (b) depreciation in the value of his property; and (c) loss of business
from the nuisance and (d) personal injuries.
Where the nuisance is a continuing one, the award of damages in one action for nuisance does not bar subsequent
actions.
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Rylands v. Fletcher
The rule known by this case is considered one of the most important surviving cases of absolute or strict liability in
Torts. One, in fact, of the leading examples of circumstances in which the law says a person acts at his own peril, i.e.
the law holds you liable for harm caused by your act whether you did it intentionally or negligently (without fault). The
rule was laid down by Blackburn J in the Court of Exchequer Chamber in the case of Rylands v. Fletcher.
The defendants owned a mill run by water. In order to improve the water system, they employed a firm of contractors
to build a reservoir on their land. The defendants took all the care in appointing the contractors. The contractors,
however, failed to exercise due care and certain old shafts which led to the mines of the plaintiff were not blocked.
When the reservoir was filled with water, the water sipped through these shafts and flooded the mines of the plaintiff
causing considerable damage. Delivering the judgment of the Court of Exchequer Chamber which held the defendants
liable, Blackburn laid down the rule in the following words:"
"... What is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land
something which, though harmless whilst it remains there, will naturally do mischief if it escapes out of his land. ...?
We think that the true rule of law is, that the person who for his own purposes brings on his land and collects and
keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its escape."
The defendants appealed to the House of Lords. The appeal was dismissed. But, in the process, the House of Lords
(per Lord Cairns) narrowed down the principle or rule as laid down by Blackburn J. Lord Cairns, in the House of Lords,
qualified the generality of Blackburn's language by saying that the use to which the person was putting his land must
have been "a non-natural user of the land1'.
At first, it would appeal that Lord Cairns' qualification to Blackburn's rule is in effect a new rule. But, on a closer
analysis, it seems fair to say that his qualification softens the rigour of the original rule and turns a rigid rule into a
flexible yardstick which enables the courts, by determining what is natural and non-natural user to inject their view of
the economic and social needs of the moment into the application of the rule.
The rule as qualified (or subverted) by the House of Lords is stated by Street thus:
"A person who, in the course of a non-natural user of his land, accumulates or is held to be responsible for the
accumulation on it of anything likely to do harm if it escapes, is liable for the damage to the use of the land of another,
which results from the escape of the thing from his land."
The rule was developed at a time, when as a result of the change from an agricultural to an industrial society, the law
was already moving away from strict liability. It has therefore been suggested by some writers that the rule simply
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illustrates the attachment of the English courts to interests in land. But to take the explanation from Blackburn J.
himself:
"The general rule, as above stated, seems on general principle just. The person whose grass or corn is eaten by the
escaping cattle of his neighbours, or whose mine is flooded by the water from his neighbour's reservoir, or whose
cellar is invaded by the filth of his neighbour's privy or whose habitation is made unhealthy by the fumes and noisome
vapours of his neighbour's alkali works is damnified without any fault of his own; and it seems but reasonable and just
that the neighbour, who has brought something on his own property which was not naturally there, harmless to
others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his
neighgbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his
own property."
As was noted in CWC v. ECL, the general tenor of Blackburn J's statement of ~ the principle is that foreseeability or at
least knowledge of the risk is a prerequisite to the recovery of damages. But that the liability is strict in the sense that
the defendant is liable, even though he has exercised due care to prevent the escape. Let us now examine the key
elements of the rule.
(a) What is a "non-natural user" of the land?
The Privy Council had occasion to determine what "non-natural user" means in the case of Richards v. Lothian. In this
case, the plaintiff-respondent was the tenant of the second floor of premises belonging to the defendant-appellant. He
suffered damages as a result of an overflow of water from a lavatory basin situated on an upper floor of the same
premises. This was caused by the water-tap being turned on full and the waste pipe plugged, as found by the jury, "by
the malicious act of some person." At the County Court at Melbourne, liability was upheld. The defendant appealed
and the County Court decision was reversed by the Supreme Court of Victoria. A further appeal was made to the High
Court of Australia which restored the County Court's decision. And a further appeal was made by the defendant-
appellant to the Privy Council. Negligence having been negatived, the Privy Council considered the applicability of
Rylands v. Fletcher to the facts and said per Lord Moulton:
"It is not every use to which land is put that brings into play that principle. It must be some special use, bringing with it
increased danger to others, and must not merely be the ordinary use of the land or such use as is proper for the
general benefit of the community."
On the facts of the case, the Privy Council said:
"The provision of a proper supply of water to the various parts of a house is not only reasonable, but has become, in
accordance with modem sanitary views, an almost necessary feature of town life. It is recognized as being so desirable
in the interests of the community that, in some form or other, it is usually made obligatory in civilized countries. Such
a supply cannot be installed without causing some concurrent danger of leakage or overflow. It would be
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unreasonable for the law to regard those who install or maintain such a system of supply as doing so at their own
peril, with an absolute liability for any damage resulting from its presence even when there has been no negligence...."
As has been observed already, the non-natural user qualification enables the courts to adapt the rule to changed
circumstances. Compare for this purpose the following two cases of performance of public duty, on the question of
putting land to non-natural use:
a) Carrying on an industrial duty is not putting land to non-natural use in an industrial society: Read v. Lyons\u
b) In Rainham Chemical Works Ltd. v. Belvedere Fish Guano Co.12 - manufacture of ammunition during war time
held not to be non-natural use of the land.
Doubt was expressed by Viscount Simon about die correctness of Rainham's case in the Read v. Lyons. To summarise
on non-natural user, from the cases, it means:
a) Special use of the land.
b) Which use brings with it increased dangers
c) It must not be the ordinary use or use for the general benefit. See also Vanderpuye v. Pioneer Shoe Factory Ltd.
(b) What are "things" within the rule
These are things likely to do mischief, if they escape. It means that the things need not be dangerous in themselves
but must have the character of causing danger if they escape. It need not necessarily, be the thing which was
accumulated on the land. Things so far held within the rule: electricity; gas; water; explosives; and fire: see Mason v.
Levy Auto Parts of England Ltd.15
In Attorney-General v. Corke, it was held that the owner of land who allowed caravan-dwellers to live on it was liable
in Rylands v. Fletcher for interferences which they caused on adjoining land. Thus, here, human beings were held to be
"things" within the Rule!
It seems fair also to assume that only tangible things are likely to come under this rule.
(c) Accumulation
Justice Blackburn talked of "a person who, for his own purposes brings, collects and keeps there the thing that caused
the mischief." This means that the rule will not apply to things which accumulate or grow on the land naturally. The
authorities are Pontardawe Rural Council v. Moore-Gwyne;Dublin v. Ghana Housing Corporation.
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(d) Escape
There must be an escape of the thing. The escape which will satisfy the rule was explained by Viscount Simon in Read
v. Lyons. In that case, the plaintiff-appellant was injured in an explosives factory, while on an inspection duty, by a high
explosive shell during the process of manufacture. There was no allegation of negligence on the part of the defendants
who were operating the factory under a contract. It was held that there was no liability under Rylands v. Fletcher
because there had been no escape of a thing from their premises and the rule would not apply because of the absence
of an essential condition for its application. At page 168, Viscount Simon explained that escape means:
"Escape, for the purpose of applying Rylands v. Fletcher, means escape from a place where the defendant has
occupation of or control over land to a place which is outside his occupation or control." This serves as a further check
on the application of Rylands v. Fletcher.
This condition is further illustrated by Pouting v. Noakes.A horse reached over the defendant's land and ate of a yew
tree's leaves and was poisoned. It was held that Rylands v. Fletcher did not apply because the tree did not extend
beyond the defendant's land and so there was no sufficient escape.
EXTENT OF DEFENDANT'S LIABILITY
The defendant is liable for any injury to land as a result of the escape of the thing as well as consequential damage.
Unless the thing escaping causes damage, no action will lie under this rule. Indeed in Jones v. Festimog Rly Co., a claim
was allowed where the sparks from a railway engine set fire to haystack on the plaintiffs laud on the Rylaiuls v.
Fletcher rule. And also in Musgrave v. Pandelts, damage to the plaintiff’s furniture caused by escaping fire was held
recoverable.
Any special capacity for plaintiff?
But it must be remembered that, in both cases, the plaintiffs were occupiers of the land. So is the action available only
to occupiers of the land to which the thing escaped? Indeed. Lord Macmillan seems to be emphasising the interest of
the plaintiff in the land as a basis of the liability when he said in Read v. Lyons that we must remember that Rylands v.
Fletcher derives from a conception of mutual duties of adjoining or neighbouring landowners and its congeners are
trespass lo land and nuisance.
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Can a plaintiff who is not an occupier recover for injuries to chattels or person?
In Halsey v. Esso Petroleum it was held that the plaintiff could recover on Rylands v. Fletcher principles for injury to his
car, though the car was stationed on the highway and not on the plaintiff's land. See also Perry v. Kendricks Transport.
' But, in Welter v. Foot & Mouth Disease Research Institute,' doubt was expressed which suggests that a plaintiff with
no proprietary interest in the land on lo which the thing which caused the damage escaped, cannot recover.
Type of injury recoveralle
In Read v. Lyons,' (lie House of Lords, in an obiter, cast considerable doubt on whether a plaintiff car recover for
personal injuries as distinct from injury to land or chattels. However, we can say here that the Court of Appeal has
decided in Hale v. Jennings Brothers3 that an occupier can recover in respect of personal injuries. Here a tenant of a
stall at a fair suffered personal injuries as the result of the escape of a chair-o-plane of the defendant. It was held that
Rylands v. PI etcher applied and she should recover.
The rule was in issue in the Ghanaian case of Dublic v. Ghana Housing Corporation. In this case, the plaintiff and
defendants were neighbours in a low lying area surrounded by hills. After rains, water rushed down from the hills. To
prevent its estate from being flooded, the defendants constructed gutters on their land to divert the cause of the
water and thus prevent the estate from being flooded. The plaintiff whose property was lower down the line than that
of the defendants took no such precautions. As a result, the water flooded her house and her tenants moved. She
sued the defendants first for trespass but subsequently amended her claim to include liability under the Rule. The
action failed under the Rule because, according to the trial judge there was no evidence that the defendants at any
time accumulated water anywhere on their property.
The reader is also encouraged to read the cases of Vanderpuye v. Pioneer Shoe Factory Ltd and Attraah v. Aboah.
DEFENCES TO AN ACTION IN RVLANDS v. FLETCHER
To start with, reference can be made to Blackburn J in Rylands v. Fletcher.35 There he said: "He [i,e, the defendant]
can excuse himself by showing that the escape was owing to plaintiff's default; or. perhaps, that the escape is the
consequence of Vis Major, or the act of God." This sentence contains three possible defences.
CONSENT — Voluntarily given.
If the plaintiff expressly or impliedly consents to the accumulation of the thing which escapes, then he cannot sue if it
escapes. So, before a plaintiff can recover, where consent is proved, then he must establish negligence, i.e. bring his
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action in the tort of negligence. The decisions on this defence are all well reviewed in Peters v. Prince of Wales
Theatre.
THE ACT OF THIRD PARTIES
Liability is excluded if the escape is caused by the deliberate unforeseeable act of third parties. But if the defendant
could have foreseen or prevented the act of the third parties and did not, then he is liable: see Richards v. Lothian; and
Box v. Jubb . In the latter case, the defendants were held not liable for damage done through an overflow from their
reservoir because the overflow was caused by an act of a third party who emptied his own reservoir into the stream
which fed the defendants' reservoir. See also Perry v. Kendricks.'
ACT OF GOD
If an escape is caused, through natural causes and without human intervention, "/'// circumstances which no human
foresight can provide against, and of which human prudence is not bound to recognize the possibility," then it is said
this defence is available. Thus in Nichols v. Mankind'0 where a most violent thunderstorm caused flooding, the
defence succeeded. In Ruck v. Williams41 Baron Bramwell made a statement which is perhaps a rough guide for this
defence. Talking about an extraordinary storm; he said:
"We call it extraordinary, but, in truth, it is not an extraordinary storm which happens once in a century, or in 50 or 20
years; on the contrary, it would be extraordinary if it did not happen. There is a French saying 'that there is nothing so
certain as that which is unexpected.' In like manner, there is nothing so certain as that something extraordinary will
happen now and then."
This means, for example, that for an extraordinary occurrence to amount to an act of God, it must be the kind of thing
which happens rarely or happens once 20, 50 or more years.
So, in Greenock Corpn v. Caledonian Ryl Co., an extraordinary and unprecedented rainfall was held not to be an act of
God. The House of Lords explained that, in Nichols v. Marsland, the jury had found that no reasonable person could
have anticipated the storm and because the court did not want to disturb the jury's finding, that is why the defence
succeeded.
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Economic torts
The torts to be discussed in this chapter deal with acts done intentionally to cause harm to another's right to earn a
living by wrongful means. They seek to protect the sanctity of contracts and trade generally. For this reason, we have
to distinguish between acts done as (1) genuine competition; and (2) pressure which interferes with the trade or
contract of another through illegal means. For example, a supermarket which sets up next to a street comer shop and
thereby kills another's business is not committing an economic tort! And we have to keep in mind the fact that the
basic concern here is to protect a person's right to earn a living.
A. PASSING OFF
This is the purest of economic torts. Its purpose is almost exclusively the protection of economic interests. We can
begin consideration of this tort by contrasting it with the tort of deceit. While deceit protects a businessman who is
the direct target of a fraudulent misrepresentation, passing off protects traders against misrepresentations aimed at
their customers, which are calculated to damage their trade or goodwill. The -common law at first confined the action
to the use by A of B's trade name or trade mark in connection with A's business or goods in a way intended to make
B's customers * believe the goods were produced by B. So the action was aimed at dishonest competitive practices. To
drive the point home, let us take some examples:
(a) Reddaway v. Banham
The plaintiff manufactured machine belting for many years, .with the name
"Camel Hair Belting." The defendants, who had previously been in the plaintiff's employment, went into business and
started stamping his goods as "Camel Hair
Beltings." This was held to be passing off.
(b) White Hudson & Co. Ltd. v. Asian Organisation Ltd.
The appellant sold cough sweets in red paper wrappers called "Hacks.'' The majority of their customers were persons
not able to read English. They acquired the habit of simply calling for "red paper cough sweets." Five years later, the
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respondent began selling sweets in Singapore in similar wrappers but marked "PETCO PECKOS." The appellants were
given an injunction to restrain the respondents from selling their sweets in the same type of wrappers without
distinguishing them in some way.
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(c) J. Bolingcr v. Costa Brava Wine Co. Ltd.
The plaintiffs produced wine in the Champagne district of France and supplied it in England and Wales. The wine called
"Champagne" had a high reputation and had been sold for many years. The defendant imported wine from Spain,
which he marketed under the name of "Spanish Champagne." The plaintiffs sought an injunction to restrain the
defendants from passing off, as champagne, wine that was not produced in the Champagne district of France. The
injunction was granted.
(d) Reckitt & Colman Products Ltd. v. Borden Inc. (the Jif Lemon Case)
The plaintiffs sold lemon juice in lemon-shaped bottles, a practice developed by them. The defendants began getting
them restrained from doing so. The plaintiffs succeeded in getting them restrained from selling juice produced by
them in a similarly-shaped bottle.
(e) Warnink v. Townend
Ratio protecting a name exclusively associated with a region in the champagne case noted above was extended to
products exclusively associated with a particular method. Injunction was granted against a product not made from
eggs and spirit being called advocaat.
In the Jif Lemon case, in answer to the submission that a trader is entitled to expect the public to exercise a reasonable
degree of diligence in distinguishing between competing products at p. 888, Lord Oliver said:
"The essence of the action for passing off is a deceit practised on the public and it can be no answer, in a case where it
is demonstrable that the public has been or will be deceived, that they would not have been if they had been more
careful, more literate or more perspicacious. Customers have to be taken as they are found."
So a trader who discovers from something that the customer says or does that the customer is mistaking his product
for a competitor's though not from anything he has said, may be liable in passing off if he does not correct the
customer's self-induced misapprehension.
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B. INTERFERENCE WITH CONTRACTUAL RELATIONS
It is a tort for A to intentionally induce B to break his contract with C, or to prevent B from performing it, both to the
damage of C. The damage is what C would suffer in the ordinary course of business, as well as the intended damage.
The point is illustrated by the decision in Lumley v. Gye. Johanna, a niece of the German composer, Richard Wagner,
contracted to sing exclusively in the plaintiff's theatre. The defendant, who was fully aware of this contract persuaded
her not to perform. The defendant was held liable in tort.
This was a ground breaking decision in 1853. The difficulty for a court at the time finding a procurer of a breach of
contract liable was that the appropriate action for the wrong committed by the contracting party lay in contract; but
no such action would be against the procurer. For, as the orthodox rule put it at the time, only a party to a contract
could be sued for a breach of contract. The solution settled on by the court to go round this blockade was to allow the
procurer to be sued in tort, by an action on the case. The point as the House of Lords stressed recently is that the
person procuring the breach of contract was held liable as an accessary to the liability of the contracting party. The
procurer's liability therefore depended on the contracting party having committed an actionable wrong.
In D.C. Thompson & Co. Ltd. v. Deakin, the plaintiffs were publishers. They asked all their employees to undertake not
to-become members of a trade union. They dismissed one who did. Other unionised employees of the plaintiffs called
out a strike and asked for assistance from other unions. A company which supplied the plaintiffs with paper noticed
reluctance on the part of their drivers to deliver to the plaintiffs, so they said they could no longer carry out deliveries
because of the "action of trade unions." The plaintiffs sought an injunction to restrain the unions from procuring this
alleged breach of contract. In the course of his judgment, Morris LJ. described the essentials of this tort as follows:
"The tort is committed if a person, without justification, knowingly and intentionally interferes with a contract
between two other persons." The plaintiffs' action failed here because it was not proved that the unions had
knowledge of the contract in question. Also no unlawful means had been used to bring about the breach.
From D.C. Thompson & Co. Ltd. v. Deakin, the following additional points can be noted about this tort:
a) There must be a valid contract (any kind of contract); contractual expectations are not enough. So if A teaches B
dancing in the hope of engaging him and C induces him to sign instead with C, no tort.
b) Carelessness is not enough because the tort is one of intention. The intention here requires knowledge of the
contract, or, as Lord Denning put it in Torquay Hotel Co. Ltd. v. Cousins, the defendant must "turn a blind eye to it and
intend to interfere with it."
c) But recklessness is sufficient.
d) No liability if the inducement is to terminate contract lawfully.
e) The plaintiff must be the intended target.
Inducement for purposes of the action may assume three forms:
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a) Direct Persuasion, i.e. persuasion of A to break with B. Here the breach must be a reasonable consequence of the
inducement. The defendant may act through an intermediary. Liability does not require the defendant to use unlawful
means; persuasion is enough; on the other hand mere advice is not persuasion and involves no liability. See also
Camden v. Forcey.
b) Direct prevention (intervention) where A docs an unlawful act (e.g. kidnaps B) to prevent B from performing his
contract with C: see GWK Ltd. v. Dunlop Rubber Co. Ltd.
c) Indirect prevention or intervention, i.e. when A induces B to breach his contract with C, see J.T. Stratford & Sons
Ltd. v. Lindley.1'1 Here, a breach must be a necessary consequence of the defendant's conduct, and has to be
unlawful. "Indirect interference is only unlawful if unlawful means arc used:" per Lord Denning in Torquay Hotel Co.
Ltd. v. Cousins.
Defence
The defendant may plead justification. The point is illustrated by Brimelow v. Casson. In that case the plaintiff paid his
chorus girls such low wages that, to make ends meet, they had to practise prostitution. The defendants who ran a
protection society for theatre workers induced theatre proprietors not to allow the plaintiff to use their theatre, to get
the plaintiff to raise wages. Contracts were broken in some cases and, in others, proprietors refused to enter into new
ones. It was held that the defendant's action was justified because the plaintiff's conduct was compelling the girls to
resort to immorality.
Further, if A has a legally enforceable financial stake in IVs affairs, he may be justified in inducing B to break his
contract with C. Sec also Merkur Island Shipping Co. v. Laughlon.
C. CONSPIRACY
This action is an off-shoot of the criminal law. It consists in an agreement between two or more persons to injure X by
unlawful means or in a combination to do a lawful act to injure X or to do a lawful act by unlawful means. Sometimes
an act if done by an individual will be lawful, but becomes unlawful by virtue of the fact that it is done in combination.
This is because of the power of the combination. The unlawful acts may be (a) criminal; (b) tortious; or (c) acts in
breach of statute. In case of (c), the plaintiff
should have an independent cause of action for the breach of the statute. In the case of conspiracy consisting of a
combination to do a lawful act to injure X, it must be clear that the ulterior motive (i.e. the intention) is to damage the
plaintiff rather than to serve the bona fide and legitimate interests of the defendants. As has been said by an eminent
judge Viscount Simon in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch:
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"The test is not what is the natural result to the plaintiffs of such combined action, or what is the resulting damage
which the defendants realize or should realize will follow, but what is in truth the object in the minds of the combiners
when they acted as they did. It is not consequence that matters, but purpose; the relevant conjunction is not 'so that'
but 'in order that'."
In that case and in Mogul Steamship Co. v. Macgregor Gow '& Co., it was held lawful to drive the plaintiff out of
business in order to protect the defendant's own business.
But there will be liability if the action taken exceeds the protection of legitimate interests: see Huntley v. Thornton.
Where a defendant acts on mixed motives, liability depends on the predominant motive. For the defence of
justification: see Scala Ballroom? In this case, the plaintiffs decided to refuse admission to coloured persons. The
Musicians' Union which had many coloured persons among its members gave notice that none of its members would
perform in the ballroom till the ban was lifted. The plaintiff sought an injunction to restrain the defendants, officials of
the union, from persuading or attempting to persuade their members not to perform. It was held that an injunction
would not lie. The defendants' purpose, the protection of their members' interests, was legal. See also Lonrho Ltd. v.
Shell Petroleum Co. Ltd (No. 2).
D. INTIMIDATION
This tort is committed if the defendant threatens to use unlawful means to compel A to comply with his wishes and
does so to his detriment; or threatens to use unlawful coercion against A and compels him to act to the detriment of
B. In Rookes v. Barnard the BOAC case, the plaintiff, an employee of BOAC (being dissatisfied with the union) resigned
from his union but continued to work for BOAC. Union officials, some of whom were employees of BOAC and were
anxious to maintain a closed shop, threatened BOAC with strike action, unless they dismissed the plaintiff. Strike
action would have involved breaches of contract by the employees concerned. BOAC dismissed the plaintiff and he
sued the defendants for intimidating BOAC. The House of Lords held the plaintiff could recover. Also, in Tarleton v.
M'gawky2'1 the defendants fired guns at Africans in order to frighten them away from trading with his rival. He was
held liable in the tort. (How about employing flatulence!)
E. CAUSING LOSS BY UNLAWFUL MEANS
The tort of intimidation, it has been suggested, is only a variant of a broader tort known as "causing loss by unlawful
means." The broader tort was recognised by Lord Reid in J.T. Stratford & Son Ltd. v. Lindley when he says:
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"The respondents' action (in calling a strike) made it practically impossible for the appellants to do any new business
with the barge-hirers. It was not disputed that such interference with business is tortuous, if any unlawful means are
employed."
This tort was by the decision in OBG v. Allan separated from the principle of accessory liability laid down in Lumley v.
Gye, namely inducing breach of a contract.
The tort of causing loss by unlawful means differs from the tort of inducing breach of contract, the Lumley v. Gye
principle, as originally formulated, in at least four respects. First, unlawful means was a tort of primary liability, not
requiring a wrongful act by anyone else, while Lumley v. Gye created accessory liability, dependent upon the primary
wrongful act of the contracting party. Secondly, unlawful means required the use of means which were unlawful under
some oilier rule (independently unlawful), whereas liability under Lumley v. Gye required only the degree of
participation in the breach of contract which satisfied the general requirements of accessory liability for the wrongful
act of another person. Thirdly, liability for unlawful means did not depend upon the existence of contractual relations;
it was sufficient that the intended consequence of the wrongful act was damage in any form, for example, to the
claimant's economic expectations. Under Lumley v. Gye the breach of contract was of the essence. If there was no
primary liability, there could be no accessory liability. Fourthly, although both were described as torts of intention, the
results which the defendant had to have intended were different. In unlawful means the defendant had to have
intended to cause damage to the claimant (although usually that would be a means of enhancing his own economic
position).
The elements of this tort as stated by Lord Hoffman in OBG v. Allan are:
A wrongful interference with the actions of a third party in which the plaintiff has an economic interest, and
An intention thereby to cause loss to the claimant.
The most important question here is what constitutes "unlawful means." Acts against third parties count as unlawful
means only if they are actionable by that third party. To quote Lord Hoffman:
"Unlawful means ... consists of acts intended to cause loss to the claimant (i.e. plaintiff) by interfering with the
freedom of a third party in a way which is unlawful as against that third party and which is intended to cause loss to
the claimant. It does not ... include acts which may be unlawful against a third party but which do not affect his
freedom to deal with the claimant."
F. INJURIOUS FALSEHOOD
Care should be taken not to confuse this tort with defamation. The tort protects interests in the reputation and
goodwill of one's business. The law was thus stated by the Court of Appeal in Ratcliffe v. Evans:
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"An action will lie for written or oral falsehood ... where they are maliciously published, where they are calculated in
the ordinary course of things to produce, and, where they do produce, actual damage." Originally, this tort addressed
unwarranted attacks on title to land; hence it was known as slander of title. Later, it was extended to goods — slander
of goods. Since Ratcliffe's case, it is now referred to as "injurious falsehood."
Any type of interest in land, trademarks, patent, trade names, copyright, company shares — all can found action in this
tort. For this proposition, see Joyce v. Motor Surveys.30 Here, the plaintiff was a tenant of the defendant. To evict him
and be able to sell the entire property with vacant possession, the defendant told the Post Office not to forward any
more mails to him at that address and told the tyre manufacturers' association that he was no longer trading there.
The court held the defendant liable for injurious falsehood.
The action will also be available, where business reputation is maliciously disparaged; but no imputation entitling
action in defamation is made. Interference with prospective advantage, even social, comes within the ambit of this
tort. Thus, to deprive A of a marriage by falsely informing the intended husband that A is already married is tortious:
see Shepherd v. Wakeman.31
For this action, the test is whether a reasonable man will take the defendant's claim in denigration of the plaintiff's
goods seriously. Thus in White v. Mellin32 W bought bottles of infant’s food made by M for sale in his shop. He affixed
to it a label that said Dr. V's food for infants and invalids, a product of W, was better than any other. Held no injurious
falsehood. Just mere puff.
By way of a summary, for the action for injurious falsehood to succeed the following requirements must be
established:
a) The plaintiff must prove malicious statement, by showing, for e.g. absence of belief in the truth of the statement
on the part of the maker, the defendant.
b) The statement must be a false one about the plaintiff or his property. Not just that a false statement has caused
him harm.
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c) There must be publication i.e. the statement must be made to a third party.
d) The plaintiff must prove that the false statement caused him pecuniary loss.
General negligence
The area to be explored is general negligence
In the case of ALLASAN KOTOKOLI V MORO HAUSA Edusei j stated that for an action of negligence to succeed the plaintiff
must prove that there was in existence a duty owed to him, a breach of that duty by the defendant and injury resulting from
the breach.
Definition of duty of care- in DERRY V PEAK it was stated that a duty of care arises when there was such a proximity between
persons or properties of parties that absence of care might cause damage by one to the other
A duty of care may arise under two main situations. They are precedent situations and novel situations
Precedence situations
Rescue-
 The rule is that if by the negligent act of the defendant a person is put in peril the defendant owes a duty of care to
anyone who was reasonably foreseeable to come to the rescue of those in peril-CHADWICK V BTC. Two trains
collided and the plf who had once suffered psycho-neurotic symptoms went to rescue and later suffered anxiety
neurosis. It was held that they owed a duty of care to the plf as it was reasonably foreseeable that in such an accident
someone would come to the rescue
 Must not act wantonly of show disregard for own life-MORRIS IN BAKER V T E HOPKINS
 A busybody cannot recover under this action-CUTLER V UNITED DIARIES. The plf was injured when he entered a
field to calm some horses. There was no one in danger. It was held that the plf was a busybody and that with no one
in danger he volunteered to the horses at his own risk
Nervous shock
 Definition of nervous shock- reaction to an immediate and horrifying impact resulting in some recognizable
psychiatric illness. This is serious mental disturbance outside the range of normal human experience and not
merely the ordinary emotions of anxiety, grief or fear-PAGE V SMITH. The claimant had suffered from ME over a
period of time and was in recovery when he was involved in a minor car accident due to the defendant's negligence.
The claimant was not physically injured in the collision but the incident triggered his ME and had become chronic and
permanent so that he was unable to return to his job as a teacher. A defendant, who is under a duty to care to the
plaintiff, whether as primary or secondary victim, is not liable for damages of nervous shock unless the shock results
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in some recognized psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it
relevant that the illness takes a rare form or is of unusual severity
 Sorrow and grief are not recoverable-HINZ V BERRY
 Class of persons-They have close relationship with the injured person-MCLOUGHLIN V O'BRIAN,
ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE-lord wilberforce
 Proximity in time and space-MCLOUGHLIN V O'BRIAN
 Means by which such shock was caused-must be through sight or hearing or immediate aftermath
and not communication by a third person-MCLOUGHLIN V OBRIAN
Pecuniary loss
 Duty of care exists where the economic loss was reasonably foreseeable from the defendant’s act -HEDLEY BYRNE
V HELLER & PARTNERS
 Test is if it was reasonably foreseeable and direct-SCM V WHITTAL-lord denning-except where such loss is the
immediate consequence of the negligence, SPARTAN STEEL AND ALLOY V MARTIN AND CO. SCM V WHITTAL- The
defendants, building contractors, were rebuilding a boundary wall when a workman damaged an electric cable
owned by the electricity board which ran alongside the road. The cable supplied electric current to several factories
in the road in the plaintiffs’ typewriter factory. Plaintiffs alleged that the defendants had negligently damaged the
cable causing a seven hour power failure in their factory and resulting in damage to materials, machines and
consequential loss of production. Held-the contractors were working near an electric cable which they knew supplied
electricity to the whole neighborhood. They knew that if they damaged the cable the current would be cut of and
damage would be suffered by the factory owners and so they owed a duty of care. SPARTAN STEEL AND ALLOY V
MARTIN AND CO
 A duty arises where there is damage to person or property-DENNING IN SCM V WHITTAL
 If the loss is consequent upon injury to person or property- ELECTROCHROME V WELSH PLASTICS. The def’s servant
negligently drove into a fire hydrant and damaged it. This resulted in the cut off of water supply to the plf’s factory.
The plf lost a day’s work in their factory. It was held that there was no injury as the duty held no to damage the fire
hydrant was owed to the owner and not to the plf who were not the owners.
Novel situation
 The loss must have been reasonable foreseeable. DONOGHUE V STEVENSON. Mrs Donoghue went to a cafe with a
friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so
that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and
also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the
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bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury
as a result. She commenced a claim against the manufacturer of the ginger beer. Lord Atkin held that "The rule that
you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question "Who
is my neighbour ?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer
seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which are called in
question."
 There must have been a relationship of proximity between the parties-DONOGHUE V STEVENSON
 It must be fair, just and reasonable that the law impose a duty-CAPARO INDUSTRIES V DICKMAN. A company called
Fidelity plc, manufacturers of electrical equipment, was the target of a takeover by Caparo Industries plc. Fidelity was
not doing well. In March 1984 Fidelity had issued a profit warning, which had halved its share price. In May 1984
Fidelity's directors made a preliminary announcement in its annual profits for the year up to March. This confirmed
the position was bad. The share price fell again. At this point Caparo had begun buying up shares in large numbers. In
June 1984 the annual accounts, which were done with the help of the accountant Dickman, were issued to the
shareholders, which now included Caparo. Caparo reached a shareholding of 29.9% of the company, at which point it
made a general offer for the remaining shares, as the City Code's rules on takeovers required. But once it had control,
Caparo found that Fidelity's accounts were in an even worse state than had been revealed by the directors or the
auditors. It sued Dickman for negligence in preparing the accounts and sought to recover its losses. This was the
difference in value between the company as it had and what it would have had if the accounts had been accurate.
Lord bridge held that there should exist between the party owing the duty and the party to whom it is owed a
relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one
in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the
one party for the benefit of the other
Breach of duty
This is measured by the standards of a reasonable man-MENLOVE V VAUGHAN
 Likelihood of injury/foreseeability of harm-BOLTON V STONE. The plf was hit and injured by a cricket player on a
cricket ground which was surrounded by a seven feet fence. There was evidence that over a period of 28 years only 6
balls have made it over the fence. It was held that a man is not in breach of his duty in respect to an injury which was
so unlikely to happen as would make the man provide against it
 Magnitude/seriousness of the risk-PARIS V STEPNEY BOROUGH COUNCIL. The plaintiff, a one-eyed man employed
by the defendants, was working in conditions involving some risk of eye injury, but the likelihood of injury was not
sufficient to call upon the defendants to provide goggles to a normal two-eyed workman. In the case of the plaintiff,
however goggles should have been provided for, whereas the risk to a two-eyed man was of the loss of one eye, the
plaintiff risked the much greater injury of total blindness. It was held that because the risk of greater injury to the
employee ne eye, the employer was in breach of duty in not providing protection measures
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 The importance or social value of the activity engaged in or the end to be achieved-DABORN V BATH TRAMWAY.
The plaintiff was driving an ambulance with a left-hand drive and with one driving mirror on the left-hand side
attached to the windscreen. The ambulance was completely shut in at the back so that the plaintiff was unable to see
anything close behind her. The defendant driver negligently tried to overtake her when she signaled with her left
hand that she was to turn right. The driver of the motor bus collided with the plaintiff’s ambulance and the plaintiff
sustained severe injuries. She sued the driver and his employers. It was held that in measuring due care one must
balance the risk against the end to be served
 Expenses involved in the safety measures as against the risk-LATIMER V AEC. A rainstorm caused the def’s factory
to be flooded and the floor covered with an oily cooling mixture. Sawdust was used to cover the floor but it got
finished and so some areas were left untreated. The plf was working in an untreated area and fell and injured his
ankle while attempting to load a heavy barrel. It was held that the def had done all that a reasonable employer was
expected to do having regard to the degree of risk
 Compliance with the general and approved practice. However the approved practice itself must be reasonable-
ROE V MINISTER OF HEALTH. An anesthetic was administered to the plf by the def who was a medical doctor. The
anesthetic was kept glass ampoule in phenol. The phenol unfortunately seeped into the bottle through invisible
cracks. It contaminated the anesthetic resulting in the plf becoming permanently paralyzed. The doctor had visible
examined the anesthetic before administering it. It was held that that was the approved practice at the time and so
the def was not negligent as he took all the precautions that a person in his position would have done at the time
Res Ipsa Loquitor-the thing speaks for itself
 The thing causing damage must be under the management/control of the defendant or his servants-UDE V
BONJUT. The def left his house to his gf and others and travelled. Those in charge left the tap running and water
overflowed and damaged the plf’s goods downstairs. It was held that he was liable as the place was in occupation for
which he was responsible.
 The accident is such that in the ordinary course of things it does not happen when care is taken-SCOTT V LONDON
ST KATHERINE DOCKS
 Absence of explanation. Explanation must be exact and show that there was no breach of duty-MBADIWE V YAYA.
The plf parked his car on the left side of a road. The def’s car ran into the rear of it. The def explained that the plf’s
car was badly parked and that he would have hit the gate had he not hit the car. It was held that the explanation
given was unreasonable and that his statement meant that there was more space to pass but he chose to hit the car.
 The plf must not know of the cause of the accident-BARKAWAY V SOUTH WALES TRANSPORT. The appellant’s
husband was killed while traveling in the defendants’ omnibus which veered across the road when the offside front
tyre burst and fell over an embarkment. The cause of the accident was a defect in the tyre. It was held that if
sufficient facts are known as to the cause of the accident, res ipsa does not apply and the onus of roof was on the plf
to prove negligence.
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Resultant damage
 Causation- ‘but for’ test- BARNET V. CHELSEA AND KENSINGTON HOSPITAL MANAGEMENT COMMITTEE. A night
watchman was taken to a hospital complaining of vomiting. The duty casualty officer refused to see him; and told
him to go home and get his own doctor. A few hours later he died of arsenic poisoning. It was held that although the
doctor was negligent he was not liable as the death was not a result of the negligence
 Remoteness of damage-two schools of thought
o liability for all direct consequences-RE POLEMIS
 This is usually applied to personal injury cases-SMITH V LEECH BRAIN
the deceased was employed as a laborer and galvanizer. He got a burn on his lips as a result of contact with molten metal. He
burn was treated but later developed into cancer. This was because he had a pre-malignant condition resulting from contact
with tar. The deceased died of cancer. The court held that the burn was the promoting agency of cancer in the tissues which
already had a pre-malignant condition. The question was whether the employers would have foreseen the burn. If a man is
negligently run over... it is no answer to the sufferer’s claim for damages that he would have suffered less injury... if he had
not had an unusually thin skull or an unusually weak heart
o Liability for only foreseeable consequences-WAGON MOUND
Novus actus interveniens
If there is an intervening event it breaks the chain of causation. However the chain of causation is not broken if the thing that
happened is the very likely thin to happen but for the negligence of the defendant-ADU V GLIKSTEN. The plaintiff's vehicle
was damaged as a result of an accident which was clearly caused by the negligence of the second defendant, servant of the
first defendant. The car had been parked when the defendant rammed into it. The plaintiff's driver then in charge of the
vehicle, left it unattended on the high road. When he returned to it the next day with his master, the plaintiff herein, he
found that several parts had been stolen from the vehicle, with the result that it was uneconomic to repair it. When asked
why he did not arrange for a watchman to watch the vehicle in his absence he said he "was perplexed at the sight of the
accident and rushed to inform the lorry owner’’. It was held that the driver's answer indicates that he was thrown into a
dilemma as a result of the accident. He took a course which though not unreasonable in the circumstances turned out to be
less than prudent. But as it was the defendants' negligence which put him in that dilemma they are liable for the full
consequences of that negligence
Elections
When a person is put in a situation where he is to choose between two evils and he elects the less dangerous alternative, the
defendant is liable should any injuries occur- EKWO V ENECHUKWU. The plaintiff was a passenger in the defendant’s lorry.
During the course of the journey the seat he was sitting on came out of its position due to negligent fixing by the defendant.
The plaintiff fell with his right hand under the seat and broke his hand badly. The plaintiff refused to go to the hospital when
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the defendant offered but opted to be taken to a native doctor. The plaintiff had refused to go to the hospital because he was
afraid his hand might be amputated. Some days later he was taken to the hospital suffering from a septic wound and had his
arm amputated. The doctor expressed the view that if he had come to the hospital immediately his arm might have been
saved. The West African court of appeal held that his belief and choice to go to the native doctor was reasonable especially
with the common knowledge that a portion of the population of Nigeria held strong beliefs in native doctors. Therefore the
plaintiff was not contributory negligent and so the defendant was held liable for the amputation as well.
Defences
Contributory negligence-this is when the plaintiff's own negligent conduct in combination with that of the defendant resulted
in injury to the plaintiff. In a situation like this the plaintiff is liable for his part of the contribution- part 1 of civil liability act
1963(act 176), section 1(1)
Apportionment of liability in case of contributory negligence
(1) Where a person suffers damage as the result partly of the fault of any other person and partly of the fault of that person
or the fault of someone for whom that person is responsible, a claim in respect of that damage shall not be defeated by
reason of the fault of the person suffering damage, but the damages recoverable shall be reduced to the extent that the
Court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damage.
Contributory negligence
The plaintiff's negligence must be in respect to the risk he exposed himself into- JONES V LIVOX QUARRIES LTD, OWENS V
BRIMMELL. The plf accepted a ride from the def knowing very well that he was drunk. They had spent the night drinking. An
accident occurred with the plf sustaining injuries. It was held that the plf contributed to her injury as she knew the state of
the def and yet accepted the ride.
Volenti non fit injuria
This is when the plaintiff consents or exposes himself to the risk to injury-CUTLER V UNITED DIARIES. The Claimant was
injured when he entered a field to calm some horses. His claim for compensation was unsuccessful as the horses presented
no immediate danger to persons or property and there was no need for him to intervene. He was thus held to be volens.
If may arise when
 The plaintiff agreed that the defendant was not liable
 The plaintiff was guilty of contributory negligence
 The plaintiff agreed to defendant conforming to a standard of care which is lower than normally required by law
It must be proven that the plaintiff voluntarily and freely with full knowledge of the risk, agreed to the conduct -GYASI V
STATE GOLD CORPORATION & ANOR. The plaintiff was an employee of the first defendants and so was the driver of the car.
While negotiating a sharp curve, the driver went into the lane of the other vehicle resulting in a collision. The plaintiff sought
for damages. It was contended by the defendants that the plaintiff had control of the vehicle and had allowed the manner in
which the vehicle was driven that day. It was held that there was no evidence whatsoever to support the contention that the
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plaintiff having full knowledge of the nature and extent of the risk involved consented to it. Neither could it be said that the
plaintiff was guilty of conduct which permitted the negligent manner in which the defendants' driver drove the vehicle nor
was there any evidence of acquiescence on the part of the plaintiff. Being in control of a driver in charge of a vehicle on
which one was travelling required more than merely being able to tell him to reduce his speed. There must be evidence of
the driver being under the complete dominion of the passenger which was not the case here
Negligence in relation to chattels
Manufacturer's liability principle in DONOGHUE V STEVENSON- MPSUWAPLP
A manufacturer of products which he sells in such a form as to show that he intends to reach the ultimate consumer in the
form in which they left him with no reasonable possibility of intermediate examination and with knowledge that the
absence of reasonable care in the preparation of putting up of the products will result in an injury to the consumer's life or
property owes a duty to the consumer to take that reasonable care
Manufacturer includes repairers, masons, designers, assemblers and even suppliers of articles-BROWN V COTTERILL.The
defendant, a mason negligently erected a tombstone and as a result it fell on the plaintiff who was lawfully in the churchyard.
It was held that he was a manufacturer and therefore liable.
Products include things used externally and internally-GRANT V AUSTRALIAN KNITTING MILLS. The plaintiff contracted
dermatitis through wearing woolen underpants which had been manufactures by the defendants. The disease was caused by
the excess of sulphites negligently left in the underpants by the defendant. It was held that the defendant was liable as no
logical distinction could be drawn between a noxious thing taken internally and a noxious thing applied externally.
The sale of product is not limited to items given in exchange for consideration but also items such as free samples -HAWKINS
V COULSDON AND PURLEY UDC-DENNING
Ultimate user is anyone foreseeably harmed by the defective product-STENNET V HANCOCK. The owner of a lorry took one of
the wheels of the vehicle to a motor repairer with instructions to reassemble it. The defendant did it. While driving it the
flange came off and injured the plaintiff. It was held that the plaintiff was an ultimate consumer and so by manufacturing a
product negligently and resulting in injury to the plaintiff he was liable.
The test for determining whether there was no reasonable intermediate examination is whether the manufacturer
contemplated that any defect will remain there at the time of their use by the plaintiff-DRANSFIELD V BRITISH INSULATED
CABLES-HAWKES J.
 If the consumer detects the defect but uses the product, the consumer might be held to be contributory negligent-
RIMMER V LIVER POOL CITY COUNCIL
 If the consumer misuses the product in an unfashionable way, the manufacturer may not be liable-ASWAN V
LUPDINE
 A defect may be in the design, the container, labelling or packaging-street 8th edition
In English law the burden of proof laid on the plaintiff to show absence of reasonable care-LORD MACMILLAN IN DONOGHUE
V STEVENSON
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Preparation and putting up-The rule is based on the control of the production process of the product and also extend to
distributors who are expected to test the product- DONOGHUE V STEVENSON. Lord Macmillan stated that it covered such
negligent acts as occur in the actual manufacture of the products.
The manufacturer must be in control of the production process-LORD MACMILLAN IN DONOGHUE V STEVENSON
The injury must be to the consumer's life or property as well as economic loss-HEDLEY BYRNE V HELLER PARTNERS
In Ghana, res ipsa loquitur applies- ABOAGYE V KUMASI BREWERY LTD. The plaintiff was drinking beer with some friends
when he found a rotten palm nut in the beer. He had a funny feeling after seeing the palm nut and felt like vomiting. During
the night he vomited and had frequent stools. He was seen by a doctor the next day who noted that his symptoms were due
to poisoning. It was held that the fact that the nut was found in the beer raised the legal maxim res ipsa loquitur and
presumed negligence of the manufactures in the preparation of the beer.
Employer’s liability
In Wilson & Clyde coal co. ltd v English it was said by Lord Wright that an employer owes a personal duty to his employee to
provide a competent staff of men, adequate material and a proper system and effective supervision. Whether an employer
owes a duty is a question of fact.
However this does not imposes on the employer a duty to take special care in respect of an employee who would suffer
greater injury should it occur except what the employee is doing is in itself dangerous- PARIS V STEPNEY. The plaintiff, a one-
eyed man employed by the defendants, was working in conditions involving some risk of eye injury, but the likelihood of
injury was not sufficient to call upon the defendants to provide goggles to a normal two-eyed workman. In the case of the
plaintiff, however goggles should have been provided for, whereas the risk to a two-eyed man was of the loss of one eye, the
plaintiff risked the much greater injury of total blindness. It was held that the work in itself was not a dangerous one and so
the defendant were not ordinarily obliged to provide goggles as part of the system of work and that the plaintiff’s disability
was not relevant to the severity of duty owed to him in that the work did not expose him to a greater risk of injury but a
greater injury
The law does not require employers to dismiss employees if it is the only way of avoiding liability- WITHERS V PERRY CHAIN.
The plaintiff, an employee of the defendant’s had to stop the job because of dermatitis due to grease contact. The employers
took all precautions against contracting of the disease by providing gloves and cream against irritant in the grease. The
employee contracted the dermatitis 3 times each of which she was out of the job and was re-employed on her own
insistence. She was simply allergic to the grease. It was held that the employers were under no duly to discuss or to refuse to
employ an adult employee who wished to do a job merely because there might be the same skin risk to the employee in
doing the work
The employer owes a personal duty to provide competent workman-BLACK (BUTLER) V FIFE COAL CO LTD, HUDSON V
RIDGE MANUFACTURING CO LTD. The husband of plaintiff was killed by an outbreak of poisonous gas while working in the
employment of defenders, a limited company, in a coal mine of which they were owners. In an action for damages at
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common law and alternatively under Employers' Liability Act 1880 (c 42) (repealed), the sheriff-substitute found that
defenders were liable inasmuch as they had failed to appoint officials competent for the working of the mine.
The employer must provide adequate appliances and tools. The employer is not liable for defective tools provided they
were procured from reputable manufacturers and the defect was not discoverable upon inspection- DAVIE V NEW
MERTON BRD. MILLS. The defendant had bought some tools with a defect not discoverable upon inspection nor was
intermediate examination by the employers between the time of its manufacture and its use reasonably to be expected. The
plaintiff used the tool and got injured by in his left eye. It was held that the defendants were no liable as they had taken
reasonable care to provide proper appliances and were not responsible for the negligence of the manufacturers.
 If the job involves special risks, the employer must provide protective materials and reasonable steps should be
taken to see that they are used-CLIFFORD V CHALLEN & SONS- the plaintiff was employed by the defendants and
had to use synthetic glue in the course of his work. The glue could cause dermatitis unless a special cream was used
and the arts which made contact with the glue was washed. Precautionary measures were put on the notice board
and the cream was kept in the factory store to which the workmen had access. The foreman of the defendant took no
steps to ensure its use by the workmen. The plaintiff contacted dermatitis. It was held that the protective cream
should have been provided in the shop and a system provide where the workmen would use it according to
government notice. The defendant were in breach of that duty and so liable
 The employer must protect his workers from foreseeable harm-SMITH V LEECH BRAIN
 WOODS V DURABLE SUITES- the plaintiff was an experienced workman of 56 years and had specifically be instructed
by the manager to use the protective measures against synthetic glue. He did not fully observe them and as a result
contracted dermatitis. It was held that the defendants had discharged their duty to take reasonable care for the
safety of their workman and not to subject them to unnecessary risks and that they were under no duty to provide a
foreman constantly watching and ensuring that a workman of his age and experience took precautions as he has
been instructed to take.
The employer is to protect his employees from foreseeable harm- LORD PARKER IN SMITH V LEECH BRAIN & CO LTD
The employer must provide a safe system of work-KUSSASI V GHANA CARGO HANDLING. The plaintiff, a professional driver,
was employed by the defendants as a fork-lift driver. Whilst on duty driving a fork-lift, conveying bags of rice from one point
to another a pallet of 36 bags of rice crashed from a crane on him. He became unconscious and was rushed to the Effia
Nkwanta Hospital where he was admitted for eight days. At the time of the accident the crane was being driven by an
employee of the co-defendants, the Ghana Railway and Ports Authority. The plaintiff says that the defendants failed to
provide a safe system of work for their workmen for they knew that goods were likely to fall from slings of pallets on to the
quay whilst they were slung over the heads of its workers engaged below without any provision being made for warning
them before the goods were lowered to the quay. It was held that a master does not provide a safe system of work by merely
providing a manual especially to an illiterate workman if no responsible person on behalf of the defendants supervised the
workmen. There was no supervisor present at the time of the accident. If there was one, he was negligent in the discharge
of his duties. The plaintiff had to keep his attention on the load he was to collect. Meanwhile the crane driver was ready and
placing other loads at a different spot at the quay. It was therefore the duty of the defendants to provide proper methods of
signaling 1 and warning to the plaintiff and other workmen engaged in off-loading the rice. I hold therefore that the
defendants owed a duty to provide a reasonable system of work for the plaintiff. This they failed to do
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Defenses
Contributory negligence-CLIFFORD V CHALLEN. The plaintiff was also negligent and so the damages were borne equally
Volenti non fit injuria-WITHERS V PERRY CHAIN. If the employment necessarily involves particular risks the employer would
be held to have no duty to remove these risks and a workman injured in consequence of undertaking them will not recover in
negligence.
Occupier’s liability
The area of law is negligence specifically liability of the occupier of premise to……………………
The obligations of the occupier for damage which occurs on his premises depend on the character of the entrant
Lawful visitors
Contractual visitor- a person who comes into the premises in pursuance of a contract with the occupier. The duty owed to
them is that his premises are as safe for the purposes of the contract as reasonable care and skill on the part of anyone can
make them. Frances v cockrell
 Where the occupier could not have discovered the defect even by the exercise of reasonable care, there is no
liability-gilmore v LCC. The defendant joined a physical training class organized by the defendant for a small fee while
engaging in one of the exercises the plaintiff slipped and suffered injury. It was held that the duty of the council was
to provide a floor which was reasonably safe in the circumstances and they failed.
 This duty does not apply to the external part of the premises- bell v travco hotels. The plaintiff fell and suffered
injuries while walking down the quarter mile drive way which was the only road for pedestrians to and from the
hotel. He sued that the defendant failed to warn her an invitee of any unusual danger on their premises. It was held
that the principal of the duty of an occupier was relevant only to the interior premises.
Invitee- a person who comes into the premises for purpose in which both visitor and occupier have mutual economic or
business interest. The duty owed to them is to prevent injury from unusual danger which he knows or ought to have
known. Indemaur v dames. The plaintiff went to the defendant’s premises to examine several burners and to test the
apparatus they had fixed on the defendant’s premises. He fell through a hole accidentally without any fault or negligence on
his part and was injured. The hole was used by the defendant in connection with his sugar business. It was held that the hole
was unreasonably dangerous to persons not usually employed upon the premises but having a right to be there the
defendant was guilty of a breach of duty towards the plaintiff in failing to have the hole fenced.
 The law protects the invitee as long as he keeps within the limits of his invitation-walker v midland. A guest in an
inn, the property of respondent company, left his bedroom in the middle of the night to go to a water-closet. There
were properly lighted and easily accessible closets in the same corridor, but he went into a dark ‘service room’ the
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door of which was shut but not locked, and fell down the unguarded well of a lift at the end of the room and was
killed. It was held that the general duty of an innkeeper to take proper care for the safety of his guests does not
extend to every room in his house, at all hours of night or day, but must be limited to those places into which guests
may be reasonably supposed to be likely to go, in a reasonable belief that they are entitled or invited to do so
 Pearson v coleman. A child, visiting the circus, left the tent to relieve herself. She passed the lions’ runway, where
she was mauled. She sought damages for personal injury.it was held that the only people invited into that enclosure
were those who came through the proper entrance. However, having entered the circus as an invitee, and there
being no proper facilities, it was foreseeable that a child would not take heed of the warnings, and for this purpose
she was an invitee. The circus was liable in negligence.
NOTE- the same duty is owed to visitors who enter as of right
Licensee- a person who comes into the premises for social reason with permission (express or implied) of the occupier. The
duty owed is to warn the licensee of concealed dangers actually known to him and not to the licensee or obvious to him.
Fairman v perpetual investment building. The plaintiff lodged in a flat let out by the defendant with her sister on the fourth
floor. Her sister’s husband was the tenant. While descending the stairs, she caught her heel in a depression fell and was
injured. It was held that as a licensee the only duty owed to her is to not expose her to concealed dangers or traps and that
the action failed because that danger was obvious
 He has a duty to warn them of new dangers created by him-lowery v walker. The defendant did not prevent the
public from crossing his field in the way to the railway station. He put a horse in the field which was to his knowledge
savage and it attacked and injured the plaintiff. Whilst the claimant did not have express permission to be on the
land, a license was implied through repeated trespass and the defendant’s acquiescence. By failing to warn the
plaintiff of the new danger he had breached his duty
 If a danger is not known to an occupier then no duty id owed to him-morgan v girls’ society. Plaintiff was on his way
to visit the tenants of offices in a building owned by the defendants. The door leading to the left was partially open,
and the plaintiff thinking that the lift was there, stepped through the door, fell down the shaft and was injured. In an
action for damages for the injuries received the defendants contended that they had contracted with independent
contractors to keep the lift in good working order, and that they did not know and could not reasonably be expected
to know that the lift was out of order. They employed people who knew better than they about lifts. I do not think
the defendants were guilty of any default. In this case the defendants created no trap. The trap was not discovered
by the people who ought to have discovered it. No concealed danger existed of which they knew or ought to have
known, because they employed competent people to advise them.
Unlawful visitors
Trespassers
There is no duty of care owed to the trespasser except not to inflict deliberate harm or should not act in reckless disregard
of trespasser’s presence if known-addie v dumbreck.
However the occupier owes a duty of common humanity-herrington v british railway board. The child had got through a
gap in the fence near the railway line. The board, as occupiers, were aware of previous trespasses but had failed to maintain
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the integrity of the fence. The board was held liable for injuries to a six year old child who had been playing on the railway
line. The House of Lords held that the occupier of the railway premises owed a duty of common humanity to the child. Until
this case no duty of care was owed to trespassers.
 The duty does not arise until the occupier has actual knowledge either of the presence of the trespasser or facts
which makes it likely that the trespasser would come on his land
 The duty is to take reasonable steps to enable the trespasser avoid the danger-pannett v mcguiness & Co
Deceit
 Defendant must make a fraudulent misrepresentation-derry v peak.
 A statement of opinion would be actionable when indeed that opinion is not held -
west London commercial bank v kitson. The defendant’s directors of a company
accepted a bill of exchange and represented to one Ashdown that by the private acts
of parliament by which the company was formed they had the authority to do so.
This representation was false. The plaintiffs who acted on it suffered loss. It was held
that the misrepresentation was on fact and not law and so they were liable.
 It is also actionable to state half-truths and ambiguities-schneider v heath. The

defendant described the ship as clever, useful vessel for general purposes and that
the vessel and her stores are to be taken with all faults. The plaintiff bought the
vessel and later found out that the bottom was worm eaten, her keel was broken and
she was unseaworthy. The plaintiff therefore refused to continue with the purchase
and demanded back her deposit. The defendant knew of these faults and kept the
vessel afloat so the faults would be concealed. It was held that it was fraud to take
steps to conceal the truth and that although the vessel was to be sold with all faults
the defendant could not avail himself to such stipulation if he knew of the secret
faults and used means to prevent the buyer from discovering them or made a
fraudulent representation of her condition at the time of the sale.
 The representation need not be made to the plaintiff but there must be an intention that the plaintiff should rely
on it-Landgridge v levy. The plaintiff’s father bargained with the defendant for the purchase of a gun for his own use
and that of his sons. The defendant stated that it had been made by a custom manufacturer and that it was good,
safe and secure. In reliance of what was told the father used the gun but it burst and injured him. It was later found
out that the gun was badly made and was made by a manufacturer of inferior quality from that represented
 Where representation is made to a limited class then there is no liability to those outside
the class-peek v gurney. A prospectus for an intended company was issued by promoters
who were aware of the disastrous liabilities of the business of Overend & Gurney which the
company was to purchase. The prospectus made no mention of a deed of arrangement under
which those liabilities were, in effect, to be transferred to the company. The appellant bought
shares in the company and, when it was wound up, he was declared liable as a contributory
and had to pay almost £100,000. He sought an indemnity against the directors, alleging
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misrepresentation and concealment of facts by the directors in the prospectus. It was held
that his claim would fail because the statement was intended to mislead only the original
allottees and as he was a bought the share from a shareholder he was not a member of that
class
 The plaintiff must rely on the statement-smith v chadwick. The plaintiff sued the accountants and promoters of a
company. The plaintiff claimed he took shares in the company due to a certain misrepresentation that one Grieves
was a director of the company whereas this was not true. The plaintiff did not know nor have he heard of this man.
The plaintiff could not recover as he could not have relied on that statement if he neither knew the man nor have
heard of him.
 The plaintiff must suffer damage-kusi v kusi. The plaintiff, a licensed moneylender, lent a certain sum of money to
the defendant. The defendant offered as security for the loan several farms and an uncompleted house. Upon the
defendant's failure to pay the loan, the plaintiff exercised his right of sale. The defendant's family later sued the
plaintiff and set aside the sale on the ground that the properties which the defendant mortgaged were family
properties, whereupon the plaintiff sued the defendant for the recovery of the unsatisfied balance of the loan and N
¢590.00 damages for fraud and deceit. to sustain the tort of fraud the plaintiff had to prove not only that the
defendant made representations as to existing facts which were false to his knowledge but also that he intended that
the plaintiff should act on the false representations and be deceived by them. There must be proved an actual
intention to deceive the plaintiff. Then the plaintiff must go on to establish that he was influenced by the
misrepresentation, to his detriment. What was required was proof that he suffered damage as a result of the
misrepresentation: that is, that the one event caused the other and that he relied upon the truth of the
representation
Negligent misstatements
A duty of care in making non-negligent statements would be imposed whenever a special relationship exists between the
parties and responsibility is not disclaimed-hedley byrne v heller partners
A special relationship exists when-mcnaughton v hicks. The plaintiff was negotiating with a third party about a takeover bid.
The third party instructed the defendant, their accountants, to prepare accounts as quickly as possible. The plaintiff relied on
the accounts which were carelessly drawn up to make a bid. The plaintiff subsequently made a loss. The Court of Appeal
found that the defendant did not owe a duty of care to the plaintiff. There was insufficient proximity for a special relationship
as the defendant did not know the accounts would be sent to the bidder for the particular transaction. Account given by the
defendants was in general terms and accordingly it was not fair, just and reasonable to impose on the defendants a duty of
care to the plaintiffs
 The advice was required for a purpose made known to the defendant
 The defendant knew that the advice would be communicated to the plaintiff for the purpose made known
 The defendant knew that the advice was likely to be used without independent inquiry
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 The advice is so acted upon to the plaintiff’s detriment
Duty would arise if adviser gains financially from the reliance by the advisee on the advice-anderson v Rhodes. In that case
the plaintiffs and the first defendants operated as wholesalers in the vegetable and fruit market. The first defendants, a
company of good standing sometimes acted as commission agents for other buyers. The practice in this business was that
payment came later after delivery. The second defendant was employed as salesman and buyer for the first defendants. The
third defendant was the first defendant's manager. As a result of the fact that the accounts of the first defendants were net
regularly brought up to date, they did not realize that a principal for whom lie second defendants placed certain orders was in
arrears. The second defendant, when he placed some orders on behalf of the principal (Taylors Ltd) with the plaintiffs,
represented to the plaintiffs that T Ltd. (i.e. the principal) was creditworthy. They took delivery of the potatoes sold to them
thereby but were unable to pay for them having become insolvent. The plaintiffs brought the action for damages against the
defendants on the ground of negligence in representing to them hat T Ltd were credit-worthy, and without which
representation they would not have entered into the transactions. Held by Cains J that they were liable: "the representation
here concerned a business transaction whose nature made clear the gravity of the enquiry and the importance and influence
attached to the answers." There was in the circumstances a duty to exercise care in the representation which was not done. If
first defendants had kept their accounts reasonably carefully they would have realised that they had evidence which made
the credit-worthiness of T Ltd doubtful.
Lawyer can be sued for negligent misstatement –fordwuoh v law chambers
Death in relation to torts
This action is derivative and would not lie if there was a defense to the action had the deceased lived, if the deceased had
agreed not to sue, had been settled (read v great eastern railway corporation) or was statute barred.
The plaintiff’s action is for the loss of their breadwinner and so measurement is based on pecuniary loss to the dependants
and not limited by any contract between the deceased and the defendant. Nunan v southern railway co. John Nunan was a
passenger on a train belonging to the defendants, which travelled from Charing Cross to Milton Range Halt. When they
arrived at Milton Range Halt, he and other passengers were going across the railway lines in order to leave when, owing to
the negligence of the defendants' servants, they were run into by another train and Nunan and others were killed. At the
time of his death, he was being carried under a contract which limited the liability of the defendants to £100. It was held (per
Bankes, Scrutton, Atkin LL.JJ) that the important thing under the Fatal Acts was whether he could have sued them had he
lived. If he could have then, although by the contract his claim would have been limited to £100, this will not affect his
dependants' action.
This action is to protect purely pecuniary interest and not mental suffering-blake v midland railway corporation. The widow
of Blake who was killed in a railway collision which occurred as a result of the negligence of the defendants. The deceased
was a merchant. The trial judge (Parke B), in his direction to the jury, used language which did not clearly indicate that the
plaintiff could not recover for mental suffering after the death (they could recover only for pecuniary loss caused by the
death). Coleridge J was of the view that, under Lord Campbell's Acts, the measure of damages was not the loss or suffering of
the deceased, but the injury resulting from his death to his family
Funeral expenses may be recovered –section 18(5) of act 176, baaye v prempeh
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"Dependant", in relation to a person whose death is caused by a wrongful act, includes any member of the family of the
deceased, and any other person whom he was by reason of adoption under the Adoption Act, 1962 (Act 104) or otherwise
obliged to maintain and who suffers loss or mental distress as a result of the death;
"Member of the Family" means when used in relation to a citizen of Ghana anyone of those persons mentioned in the First
Schedule according as the family is based on the paternal or maternal system; when used in relation to a person who is not a
citizen of Ghana, the wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter,
grandson, grand-daughter, stepson, step-daughter, brother, sister, half-brother or half-sister.
Section 16—Action where Death Caused by Wrongful Act.
Where the death of a person is caused by the fault of another such as would have entitled the party injured, but for his death,
to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an
action for damages for the benefit of the dependants of the deceased.
The action shall be commenced within three years after the death.
Section 18—Damages.
(1) The damages under section 16 of this Act shall be—
(a) the total of such amounts (if any) as the court considers proportionate to the loss resulting from the death to each of the
dependants, respectively, for whom or on whose behalf the action is brought, and
(b) Subject to subsection (2), the total of such amounts (if any) as the court shall consider reasonable compensation for
mental distress resulting from the death of such dependants.
(5) In addition, damages may be awarded in respect of expenses actually incurred by the deceased before his death and in
respect of funeral and other expenses incurred by the dependants or the personal representative by reason of the wrongful
act.
(7) The amount recovered in the action shall, after deducting the costs not recovered from the defendant, be divided among
the persons entitled in such shares as the court may have determined.
Prospective loss can be recovered provided that the plaintiff had reasonable expectation of pecuniary benefit from the
continuance of life-taff vale railway corporation v jenkin. Action brought by the respondent on behalf of himself and his wife
under the Fatal Accidents Act, 1846 against the appellants for the loss of their daughter, aged 16, who was killed in a railway
accident for which appellants were responsible. At the time of her death, the respondent's daughter was an apprentice
dressmaker with two more months to complete her apprenticeship. She was an exceptionally clever girl and there was a good
chance of her making substantial earnings on the completion of her apprenticeship. The respondent was a fireman in a
colliery company, who suffered from varicose veins and was not in robust health. The wife kept a small green grocer's shop. it
was proved that, at the date of her death, the deceased who lived with her parents was nearing the completion of her
apprenticeship as a dressmaker and was likely in the near future to earn remuneration which might quickly have become
substantial, then there was evidence of damage which the jury could reasonably rely on
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Prospective loss can be recovered when it is showed that there was a reasonable probability of pecuniary advantage and
not a mere speculative possibility of pecuniary benefit- Barnett v cohen.
Assessment of pecuniary loss
Davies v powell duffryn associated, baaye v prempeh -assess dependency in a lump sum and apportion it to the
dependants. Action by the widows of two employees of the respondents (Daniels Davies, John Sidney) fatally injured by an
explosion in one of the mines of the respondents. They attributed the accident to the breach of statutory duty and negligence
on the part of respondents
 (a) First is to ascertain amount of wages
 (b) Personal and living expenses
 A-b=basic figure
 Covert the basic figure into a lump sum by taking a certain number of years’ purchase and taxing this lump sum
down by having due regards to uncertainties in life
Damages can be recovered for shortened expectation of life and the assessment of damages is for the prospect of a
predominantly happy life-ayimavor’s case
Section 20-the court must not take into account these in assessing damages
 Sum payable on the death of the deceased under any contract of insurance
 Pension, gratuity in consequence of the death
Contributory negligence-section 21, baaye v prempeh
Section 24-the following causes of action die with a torfeasor
 cause of action for breach of promise to marry
 seduction
 inducing one spouse to leave or remain apart from the other
 adultery
 claim for compensation under the Workmen's Compensation Ordinance
Defamation
Defamation is governed by customary law and common law principles. Section 54 of the courts act states that in a dispute
between two person's in Ghana the applicable law would be their personal laws.
Customary law
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Customary law protects reputation and injured feelings- wankyiwaa v wereduwaa
Customary law does not draw a distinction between libel and slander-apaloo JA in anthony v UCC.
Slander at customary law is actionable per se provided false-atiase v abbottey. The plaintiff a shopkeeper sued the
defendant for defaming her as a prostitute and saying that she used her store for prostitution and not for selling goods.
Publication of defamatory words under customary law are actionable if false and it does not matter whether they may be
rejected at common law as mere words or vulgar abuse uttered in the heat of a quarrel. There are two remedies-order for
retraction and apology, award for damges
Truth is not always a defence at customary law
Common law
At common law slander is distinguished from libel as this is essential in proving damage.
 Slander is not actionable per se but libel is.
 Slander is only a tort while libel can be a tort and a crime
 Slander is oral, impermanent and transcient.
Where a document containing defamatory matter is published by reading out loud to a third person or where publication
of the statement is to a clerk to whom it was dictated it is slander not libel-osborn v thomas boulter. The plaintiff wrote to
the defendants, his brewers complaining of the quality of the beer. The defendants sent one of their employees to investigate
and report. After the defendant dictated a letter to his typist in which he alleged that the plaintiff had been adding water to
the beer. Forrester v tyrell. The defendant received an anonymous letter while at a meeting of a lodge of which both lie and;
the plaintiff were members. The defendant read the letter to himself and then, by leave of the chairman, read it to the
members present. The jury found that the letter contained defamatory matter reflecting on the plaintiff. This was held to be a
publication of the libel.
 Libel is written, permanent and visible to the eye-lopes LJ in monsoon v Tussads in an earlier murder trial of the
plaintiff, a verdict of not proven had been returned by the jury. There, he put up a successful defence of accident. In
their exhibitions of wax figures, the defendants placed the effigy of the plaintiff in the "chamber of horrors" which
contained models of many murderers and malefactors and the plaintiff was represented as happened in the killing,
the subject of the murder case. The plaintiff sued for libel and an interlocutory injunction to restrain the exhibition of
the model of himself. It was held that the defamatory matter may be conveyed in some other permanent form of
statue, a caricature, an effigy, chalk marks on a wall, signs or pictures may constitute a libel
Libel also includes films, radio, television and public performances of plays
Article 21
(1) All persons shall have the right to -(a) freedom of speech and expression, which shall include freedom of the press and
other media;
(b) freedom of thought, conscience and belief, which shall include academic freedom;
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(c) freedom to practice any religion and to manifest such practice;
(d) freedom of assembly including freedom to take part in processions and demonstrations;
Article 12
(1) The fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive,
Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural
and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.
(2) Every person in Ghana, whatever his race, place of origin , political opinion, colour, religion, creed or gender shall be
entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for
the rights and freedoms of others and for the public interest.
Article 162
(1) Freedom and independence of the media are hereby guaranteed.
(2) Subject to this Constitution and any other law not inconsistent with this Constitution, there shall be no censorship in
Ghana.
(3) There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law
requiring any person to obtain a licence as a prerequisite to the establishment or operation of a newspaper, journal or other
media for mass communication or information.
(4) Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or
interference by Government, not shall they be penalized or harassed for their editorial opinions and views, or the content of
their publications.
(5) All agencies of the mass media shall, at all times, be free to uphold the principles, provisions and objectives of this
Constitution, and shall uphold the responsibility and accountability of the Government to the people of Ghana.
(6) Any medium for the dissemination of information to the public which publishes a statement about or against any person
shall be obliged to publish a rejoinder, if any, from the person in respect of whom the publication was made.
Article 164
The provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of
national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of
other persons.
Article 165
For the avoidance of doubt, the provisions of this Chapter shall not be taken to limit the enjoyment of any of the fundamental
human rights and freedoms guaranteed under Chapter 5 of this Constitution
Elements of defamation
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 Proof that the communication is capable of a defamatory meaning
The test is whether the words tends to lower the plf in the estimation of right thinking members of the society
generally-lord atkin in sim v stretch-the defendant sent a telegram to the plaintiff asking hi, to send the possessions of a
maid as well as money borrowed from her. The plaintiff alleged that it meant he was in pecuniary difficulties and had to
borrow from a maid. It was held that the words were not capable of a defamatory meaning.
Mere abusive personal attacks spoken in the heat of an argument are not defamatory-bonsu v forson
 The words are actually defamatory. The words must be interpreted in their fair and natural meaning as ordinary
people would understand it except where innuendo is pleaded-cassidy v daily mirror newspapers. The defendant
published in a newspaper a photograph of one Mr. C and a Miss X together with the words "Mr. M.C, the race-horse
owner, whose engagement has been announced." The plaintiff was and was known among her
acquaintances as the lawful wife of MC. But the defendants did not know this. She brought an action for libel
pleading innuendo. It was held that the publication could be defamatory and, as the jury had found that the
photograph and the caption conveyed to reasonably-minded people an aspersion on the plaintiffs moral character,
she was entitled to succeed. Grubb v british united press- The plaintiff was the rector in a village of Somerset.
Unhappy events between him and his parishioners culminated in a meeting of the parishioners, rector and rural clan.
Persons not on the electoral roll and the press were asked to leave before the meeting started. The defendant
newspaper published, on the next day, an article with large headlines in which they stated the above facts and also
that the plaintiff charged £20 for wedding bells. The plaintiff sued and pleaded innuendo. It was held that an
innuendo is an allegation that words were used in a defamatory sense other than their ordinary meaning and must be
founded on facts and matters and cannot be founded only on interpretation because, if the words bear the
interpretation imputed to them, they are defamatory in their ordinary meaning.
 The words were in reference to the plf-knupfer v london express newspaper. The newspaper published an article
referring to an as association of political refugees which, it was admitted, could have been defamatory if it had been
written about a named individual. The appellant was head of the U.K. branch of the association which consisted of 24
members. It was held that the applicant was not entitled to damages as the words were written of a class and he had
failed to show that they were pointed at him as an individual, i.e. there was no reference to him..
When the words are spoken or written about a group or class the size of the class, generality of the charge and extravagance
of the accusation are considered-browne v dc thomson & co. ltd. the defendants' newspaper published an article stating that
in Queenstown, the Roman Catholic authorities had instructed that all protestant shop assistants should be dismissed. The
seven persons who alone exercised religious authority on behalf of the Roman Catholic Church sued for libel and succeeded.
 The words were published-pullman v hill.
If a person becomes aware of the defamatory matter through stealing or eavesdropping there is no publication- huth v huth.
The defendant posted a statement to the plaintiffs, in a sealed envelope, which they alleged was defamatory. In breach of his
duty and out of curiosity, the statement was taken and read by a butler. The plaintiff claimed that this constituted a
publication of the libel for which the defendant was responsible. It was held that the statement was not published in law and
the plaintiff’s action failed.
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Libraries, news vendors and bookshops are not liable for libel contained in their books if proved that his ignorance was not
due to any negligence on his own part and that he did not know and had no ground for supposing that the newspaper
contained libelous matter-vizetelly v mudie’s select library. The proprietors of a circulatory library circulated copies of a
book which, unknown to them, contained a libel on the plaintiff. In an action for libel brought against them, they failed to
show that it was not through their negligence that they did not know the book contained the libel when they circulated it. It
they were liable as publishers of the libel.
For slander there is a need to prove damage. However, there are certain exceptions
 Imputation of crime-hellwig v Mitchell. The defendant, manager of a hotel, in the presence of others, said to the
plaintiff "I cannot have you in here, you were on the premises last night with a crowd and you behaved yourself in a
disorderly manner and you had to be turned out." It was held that the plaintiff’s action for damages would not
succeed as the defendant's words did not impute the commission of a criminal offence punishable with imprisonment
in the first instance and, for this reason, they were not actionable without proof of special damage. Webb v goaler-‘I
know enough to put you in a goal’ is actionable per se
 Imputation of a loathesome disease-bloodworth v gray. The defendant had, on several occasions, suggested to
others that his son-in-law, the plaintiff, was suffering from venereal disease. The plaintiff brought an action for
defamation. It was held that, notwithstanding the plaintiff’s failure to prove special damage, he was entitled to
succeed as the defendants’ words were actionable per se. Taylor v perkins-thou art leprous knave was held to be
actionable.
 Slander in respect of an office, profession, trade or business-jones v jones
 Imputation of unchastity- kerr v kennedy plaintiff alleged that the defendant had uttered and published that she was
a lesbian. It was held to be an imputation of unchastity.
The damage should have been caused by the defamatory matter and resulted in material loss to the plaintiff
The test for causation is reasonable foreseeability-lynch v knight. The plaintiff brought an action to recover damages from
the defendant for slander uttered by him to her husband, imputing that she had almost been seduced by B before her
marriage and that die husband ought not to allow B to visit at his house. The ground of Special damage was that in
consequence of the (statement) slander, her husband sent her home to her parents, whereby she lost the consortium of her
husband. It was held that the cause of the complaint thus set forth would not sustain the action because the alleged ground
of special damage did not show a natural and reasonable consequence of the slander. It was said that if the imputation had
been that she had broken her matrimonial vows, i.e. committed adultery, then the husband's behaviour would have been
expected. But, as a reaction to the particular situation, no one would have foreseen the consequence as being the turning out
of the wife from the matrimonial home
The loss must be capable of being quantified in money-allsop v allsop
Under customary law slander is the only action under defamation and it is actionable per se-ampong v aboraa. the plaintiff
who was a candidate for the Akropong Stool was called "slave and beast" by the defendant. The plaintiff sued for damages
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for damages for slander the, in an amendment to his statement of claim, pleaded to have the matter dealt with under
customary law. The court held that the epithet "slave" by itself was actionable under customary law without proof of special
damage, although whether it still carried its former sting.
Defenses
Absolute privilege
 Executive matters-communications relating to state matters are absolutely privileged-atitsogbe v harlley. The
defendant, as the Inspector-General of the Ghana Police Service and Vice-Chairman of the erstwhile National
Liberation Council and subsequently Vice-Chairman of the Presidential Commission published a National Liberation
Council document an abstract of which appeared in the Ghanaian Times and other information media. The plaintiff
alleged that the publication was defamatory of him and further that the defendant in causing it to be published was
actuated by malice. He therefore brought a libel action against the defendant after the latter had ceased to be either
the Inspector-General or the Vice-Chairman. At the material time when the document was published the National
Liberation Council was the supreme executive body in the country. The publication was therefore absolutely
privileged.
 Judicial proceedings-any statement made from the bar are absolutely privileged-scott v stansfield. a county court
judge, while sitting in court said to the plaintiff "You are a harpy preying on the vitals of the poor:" The words were
held to be absolutely privileged
 Legislative proceedings- all proceedings in parliament are absolutely privileged-per brown in church of scientology
v johnson-smith. The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the
defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying
on statements made in Parliament. It was held that what was said in parliamentary proceedings could not be
examined outside of parliament
 solicitor-client communications-more v weaver. In a discussion between a solicitor and client on whether a loan
should be called in the plaintiff was defamed. The statement was held to be absolutely privileged
Qualified privilege
 Word relating to matters of common interest-hunt v great northern railway. The defendants in a printed monthly
circular issued to their servants stated that they had dismissed the plaintiff for gross neglect of duty. The occasion
was privileged in the absence of malice as it clearly to the interest of the defendants that their servants should know
that gross conduct would be followed by dismissal.
 Words protecting the interest of the publisher-somerville v hawkins
 Words protecting the interest of another. There are two conditions. The recipient must be interested in the
communication and the maker must be under some obligation to communicate-watt v longdon. the foreign
manager of a company, wrote to a director, the defendant, and said that the managing director, the plaintiff, was "a
blackguard, a thief, a liar who lived and lives exclusively to satisfy his own passions and lust." The defendant showed
this letter to the plaintiffs wife and to the chairman of the board of directors of the company. The allegations
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contained in the letter were unfounded but the defendant believed them to be true. The plaintiff sued for libel. It was
held that he was entitled to damages as the publication of the letter to his wife was not upon a privileged occasion
since the defendant did not have sufficient interest or duty, legal, moral or social, to make the communication.
Publication to the chairman of the board of directors was, however, held privileged.
 Public interest-wason v walter. the Times of which the defendant was proprietor, published an accurate report of a
debate in the House of Lords during which Earl Russell, Earl Derby and the Lord Chancellor spoke in disparaging terms
about a statement made of the Lord Chief Baron by the plaintiff in a petition to the house It was held that the action
could not succeed, as a faithful newspaper report of a debate, in either house of Parliament, which contains matter
spoken in the: course of debate disparaging to the character of an individual, will not give that individual a right of
action against the newspaper proprietor.
 Misconduct of public official-harrison v bush. The plaintiff a county judge was charged with committing during an
election gross acts of violence for which the secretary of state caused an inquiry into the allegations to be made and
if proved that he be removed by the crown. The communication was privileged in respect of the interest and the duty
of the defendant and also in respect of a corresponding interest of the secretary of state.
Qualified privilege is destroyed by
 Malice-groom v crocker
 Excess of privilege. This is when material is circulated beyond people who should legitimately receive it- adam v
ward. The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus
bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their
secretary, Sir E Ward, the defendant, to write a letter to General Scobell, which was released to the press, vindicating
him and in turn containing defamatory statements about the plaintiff. It was held that the occasion was privileged
and there was no evidence of malice on the part of either the Council or defendant
Fair comment-comment on matters of public interest made honestly without malice
 Comment must be on a matter of public interest-boohene v abeyie. The plaintiff claimed damages for libel
published in the pioneer newspaper owned by the second defendants who were printers and publishers. The plaintiff
alleged that the article was to the effect that the plaintiff made certain dismissals for political reasons and that the
plaintiff though a graduate had no qualification in airway technique. There was no evidence of malice since the first
defendant had published what he honestly believed.
 Comment must be based on fact-kemsley v foot. The politician and journalist Michael Foot had printed an article in
Tribune, a Labour Party newspaper, condemning the London Evening Standard for unethically publishing a certain
story. Lord Kemsley, who owned other newspapers, maintained that the article's headline, "Lower than Kemsley",
impugned the standards of the Kemsley press. The defence of fair comment was allowed to stand because there was
sufficient subject-matter on which the comment could be based. The comment implied that kemsley was dishonest
and low but not as low as the press. The comment implied a certain conduct and commented on that conduct
129 | P a g e
 Comment must be an opinion-boohene v abeyie, slim v daily telegraph-lord denning. Fair comment is available to
an honest man expressing an honest opinion whether exaggerated, wrong or prejudiced.
Justification- publication is true must establish truth of all material elements-wakley v cooke.
Consent
Libel act 1843- this act allows the defendant to express remorse and offer amends. If plaintiff rejects it the defendant can
refer to it in his pleading and the court would take it into account in fixing damages.
130 | P a g e

Torts Exam Notes

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Sybil Danita Quaye Torts Dimidium Facti Qui Coepit Habet

• Forms part of common law

• Two things further stand out:

Difference between torts and contract

Difference between torts and crime

Basis of liability in modern torts law

The Aim of torts

Procedure: Appeal against verdict of trespass against the defendant

Procedure; action of trespass against defendant

Procedure: action against defendant for trespass and negligence

Procedure: action against defendant for negligence

Procedure: action against plaintiff claiming damages for trespass

FAGAN V METROPOLITAN POLICE COMMISSIONER

Procedure; appeal against conviction of assault on a constable

Facts: the defendant spat in the plaintiff’s face

Holding: battery per Holt CJ

The slightest touching of another in anger would amount to battery

Procedure: action of false imprisonment against defendant

Procedure: action against defendant for trespass and false imprisonment

o Presumption of consent-There is a presumption, in general, of consent to all non-hostile

o Privileged contact- this is contact permitted by law. To determine whether a contact is

a) Nature of the act. — a blow or a pat?

b) Intention with which the act was done.

Sexual touching can amount to a battery — GUARRO V. US

The jury found for the plaintiff, so it is assault.

Principles governing the award of damages: battery and assault

See also Glover v. London S. S.W. Rly., and Cobbold v. Grand

These principles equally apply to a private person who arrests on suspicion."

Per Lord Simonds at 591:

2. Arrest without warrant.

Both types of arrest are regulated by various provisions of Act 30.

1. Arrest with a warrant under sections 71-81 of Act 30

2. Arrest without warrant

(a) Arrest by a private person:

1. any offence involving the use of force, or violence;

2. any offence whereby bodily harm is caused to any person;

3. any offence in the nature of stealing or fraud;

4. any offence involving injury to public properly;

In summary, the law allows a private individual to arrest another on suspicion.

(b) Arrest by police officer

a) commits an offence in his presence;

c) has escaped or attempted to escape from lawful custody;

a) of having committed an offence;

e) of being a deserter from the Armed Forces;

General provisions relating to arrest

a) his arrest was unlawful on the evidence;

b) ipso facto, he was justified in resisting unlawful arrest; and

Anterkyi J stated at 193:

Article 14 of the Constitution, 1992 provides as follows::

b) in execution of an order of a court punishing him for contempt of court; or

(2) A person who is arrested, restricted or detained shall be informed

(3) A person who is arrested, restricted or detained —

(6) Where, a person is convicted and sentenced to a term of imprisonment

False imprisonment is founded on two ingredients:

prison is necessary. Imprisonment has thus been said to be in:

On appeal, this direction was held to be a correct statement of the law.

b) A turns a key on someone in a room on the ground floor with windows.

b) A drains petrol from B's car to prevent B from driving away.

Must the plaintiff be aware of the restraint to succeed?

Article 14(5) of the Constitution, 1992 provides:

Problems relating to the requirement of directness

The tort seeks to protect two conflicting interests:

(a) that the defend initiated a prosecution against him