National Mirror www.nationalmirroronline.net
Categories of torts THE ADVOCATE OLUGBEMI FATULA
08037213732 (sms only) E-mail: afribic@yahoo.com
T
orts may be categorised in a number of ways: one of such is to divide them into Negligence Torts, Intentional Torts; Statutory Torts and Economic Torts. They can also be classified according to the type of rights or interests they aim to protect or preserve. Concerning the interest defended or protected, tort may be classified into Torts protecting personal interest; Torts protecting integrity of the judicial process; Torts protecting personal reputation; Torts protecting economic interests; Torts protecting relationships; Torts protecting property interest and Torts protecting other interests. Negligence Torts The dominant action in tort is negligence. It is so because it is not only a tort on its own right, it is also a way by which many torts may be committed. Negligence is a tort which depends on the existence of a breach of duty of care owed by one person to another. In the negligence case of Donoghue v. Stevenson [1932] AC 562, D. consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland and claimed that it had made her ill. The snail was not visible, as the bottle of ginger beer in which it was contained was opaque. Neither her friend, who bought it for her, nor the shopkeeper who sold it were aware of its presence. S. the manufacturer whom D. sued for damages for negligence. She could not sue Mr. Stevenson for damages for breach of contract because there was no contract between them. The House of Lords held that D. had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this should be treated as a new product liability case. Lord Atkin quoting the Bible held that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbours.
Law & Justice
Monday, January 6, 2014
Intentional Torts Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories, including tort(s) against the person, including assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud. Property torts involve any intentional interference with the property rights of the claimant. Those commonly recognized include trespass to land, trespass to chattels, and conversion. Among intentional torts may be certain torts arising out of the occupation or use of land. One such is the tort of nuisance, which connotes strict liability for a neighbour who interferes with another’s enjoyment of his real property. Trespass allows owners to sue for incursions by a person (or his structure, for example an overhanging building) on their land. There is a tort of false imprisonment, and a tort of defamation, where someone makes an unsupportable allegation represented to be factual which damages the reputation of another. The tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. A subset of nuisance is known as the rule in Rylands v. Fletcher (1866) LR 1 Exch 265. Statutory Torts A statutory tort is like any other, in that it imposes duties on private or public parties, however they are created by the leg-
islature, not the courts. Example is in consumer protection, where businesses making defective products that harm people must pay for any damage resulting. Liability for defective products is strict in most jurisdictions. The theory of risk spreading provides support for this approach. Since manufacturers are the ‘cheapest cost avoiders’, because they have a greater chance to seek out problems, it makes sense to give them the incentive to guard against product defects. Economic Torts Economic torts protect people from interference with their trade or business. The area includes the doctrine of restraint of trade and has largely been submerged in the twentieth century by statutory interventions on collective labour law and modern antitrust or competition law. The “absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon.” Two cases demonstrated economic tort’s affinity to competition and labour law. In Mogul Steamship Co. Ltd. (1889) LR 23 QBD 598, 614 , the plaintiff argued he had been driven from the Chinese tea market by competitors at a ‘shipping conference’ that had acted together to under price his company. But this cartel was ruled lawful and “nothing more [than] a war of competition waged in the interest of their own trade.”( see Taff Vale Railway v. Amalgamated Society of Railway Servants [1901] AC 426), Nowadays, this would be considered a criminal cartel.. Though a recent development in common law, beginning with Hedley Byrne v Heller, [1978] QB 574 , in 1964 a victim of the tort of negligent misstatement may recover damages for pure economic loss caused by detrimental reliance on the statement.
NEGLIGENCE IS A TORT
WHICH DEPENDS ON THE EXISTENCE OF A BREACH OF DUTY OF CARE OWED BY ONE PERSON TO ANOTHER.
47
Role of the Bar in effective prosecution of crimes Continued from Monday December. 30, 2013
FUNKE ADEKOYA Commencement and Trial here such adjournment is given, the case is often moved further down the court’s over-congested calendar. The current Nigerian criminal administration process does not provide a framework for the efficient conduct of trials. There is presently no provision for frontloading the proof of evidence with witness statements. This further delays the process as often surprises are sprung upon opposing counsel when some evidence are tendered, necessitating an adjournment for the defence counsel to adequately review his case. Once trial has started the relationship between prosecution and defence counsel is limited because once the witness has given his or her evidence regarding the facts and circumstances in the case, the role of the defence counsel is to find out whether there are any contradictions in the evidence led which the court can consider in the accused person’s favour. The role of defence counsel is not to defend his or her client by all means possible, although it is often thought to be so, because in the context of competition for high-value clients, a successful defence counsel is assessed by the number of cases that he has successfully defended.
W
Effective Prosecution Of Crimes: The Role Of The Bar In view of the identified lapses in the prosecution of crimes in Nigeria, it is evident that concerted efforts have to be made by all the parties involved to address these lapses pending the awaited legislative intervention. Indeed it must be borne in mind that a legislative enactment to address these lacunae is not an end in itself. It is only a starting point. This is because a beautifully drafted law without the will to enforce it is worse than no law at all. A case in point is the provision of the Lagos State Magistrates’ Courts Law 2009, which in Section 42(4) provides that “the Magistrate shall endeavour to conclude all criminal matters within ninety (90) days
NBA AS THE UMBRELLA BODY FOR LEGAL PRACTITIONERS IN NIGERIA HAS A ROLE TO PLAY IN ENSURING THAT COUNSEL WITH LACKADAISICAL COURTROOM ATTITUDES ARE REFERRED TO THE LPDC from the date of arraignment.” Yet the fact is that no criminal case gets concluded within a year of its institution in spite of the provisions. Having established the fact that legislative intervention is not an end in itself in addressing the issues militating against the effective prosecution of crimes in Nigeria, one must state clearly that the bar has a role to play in achieving effectiveness in the prosecution of crimes. A key ingredient in this role, is revamping the relationship between the prosecutor and defence counsel to ensure cordial relations. Rule 37(4) of the Rules of Professional Conduct sums up the primary duty of a lawyer engaged in public prosecution as not being to convict but to see that justice is done. The defence counsel is similarly enjoined by Rule 37(1) to exert himself by all fair and reasonable means to put before the court all matters that are necessary in the interest of justice. In doing so defence counsel must be courageous. He or she must defend those charged with offences no matter how heinous they may be, once the brief has been accepted. It is the defence counsel who must ensure that no one is found guilty unless the charge is proven beyond a reasonable doubt. If the defence lawyer is conducting the defence or the prosecution lawyer is conducting the prosecution in a manner which does not assist the court to speedily conclude its cases, then we
have a problem relating to professionalism itself. Therefore, the first requirement towards ensuring effective prosecution of crimes in Nigeria would be a reorientation of the prosecutor and defence counsel to appreciate what their true duties should be. The Nigerian Bar Association (NBA) also has a role to play in liaising with the Bench to ensure the instances where the court does not sit for justifiable reasons are few and far between. Again, the NBA as the umbrella body for legal practitioners in Nigeria has a role to play in ensuring that counsels with lackadaisical courtroom attitudes are referred to the Legal Practitioners Disciplinary Committee for appropriate discipline to serve as a deterrent. Conclusion Although it seems that crimes are increasingly being committed with growing sophistication such that the Nigerian legal system does not seem evenly matched to apprehend the culprits, it seems evident that the legal profession and the NBA has a significant role to play in making the best of the situation. Once both prosecution and defence counsel re-orientate themselves towards the common goal of ensuring the speedy dispensation of justice, this would ensure that crimes are effectively prosecuted in Nigeria, even ahead of the expected legislative interventions. Concluded •Adekoya, SAN, a founding partner in AELEX Partners writes from Lagos.