A tort is a civil wrong
committed upon the person or property, independent of a contract. It may be;
i. a direct invasion of some legal right of
the individual;
ii. the infraction of some public duty by which
special damages accrue; or
iii. the violation of some private obligation by
which like damages accrue to the individual
A tort is not a breach of
contract. In a contract, the obligation which is alleged to have been breached
arises under an agreement between the parties.
TYPES OF TORT
i) Trespass to land
Trespass to land occurs
where a person directly enters upon another land without lawful justification,
or remains upon that land, or places or projects any objects upon that land.
Trespass to land is
actionable per se i.e. it is not
necessary to prove that harm was suffered to bring a claim.
ii) Trespass to person
Trespass to person is a
direct or an intentional interference with a person’s body or liberty. There
are three ain forms of trespass to person namely, assault, battery and false
imprisonment.
a) Battery
Battery is the intentional and direct
application of physical force to another person
b) Assault
This is an act of the
defendant which causes the claimant’s reasonable apprehension of the infliction
of a battery on him by the defendant. It is an attempt to do a corporeal hurt
to another person coupled with an apparent intention to do the act.
Claimant does not have to
prove that the defendant intended to cause battery. It is sufficient to prove
that the claimant was in reasonable fear of it.
Therefore, battery occurs
where there is contact with the person and assault is used to cover cases where
the claimant apprehends contact.
c) False imprisonment
False imprisonment is the
unlawful restraint of a person against their will by someone without legal
authority or justification.
iii) Nuisance
Nuisance occurs where the
use of land by one occupier causes damage to a neighboring occupier or their
land. There are two types of nuisance;
a) Private nuisance
This is a continuous,
unlawful and indirect interference with the use or enjoyment of land or some
right over or in connection with it. Noise, smell, vibrations, animals, trees
and incursions of other items from constitute private nuisance.
b) Public nuisance
This is an unreasonable
interference with the public’s right to property. Public nuisances are created
by statute and are therefore criminal offences.
Public nuisances cover a
wide variety of crimes that threaten the health, morals, safety, comfort,
convenience or welfare of the community. Example include, obstructing a
highway, polluting a river etc.
iv) Defamation
Defamation is the public
of a statement which refers on a person’s reputation and tends to lower him in
the estimation of right members of the society generally. This tort protects a
person’s interest in his reputation.
v) Deceit and injurious falsehood
Deceit
is
a wrong whereby the claimant is misled into taking actions that are to his
detriment. For instance in Pasley v Freeman, the defendant told
the claimant that a third party was
credit worthy. The claimant loaned the party some money. He lost it due the
third party’s inability to pay. He sued the defendant and recovered the money.
Deceit occurs where a
person makes a factual misrepresentation knowing that it is false and intending
it to be relied on by the recipient, and the recipient acts on it to his
detriment.
Injurious
falsehood – this is a fallacious statement that
causes intentional damage to an individual’s commercial or economic relations.
vi) Passing off
The tort of passing off
may be summarized as follows;
“No man man may
pass off his goods as those of another”
Passing off, refers to the
misrepresentation of the goods or services one is offering as coming from another.
This false impression is created through the use another provider’s
recognizable trademarks, either by the production of an identical copy, or by
the use of a closely comparable mark.
For a plaintiff to be
successful in action for passing off, he must;
i)
Establish a goodwill or reputation attached
to the goods or services;
ii)
Demonstrate a representation by the
defendant to the public(whether intentional or unintentional) leading or likely
to lead the public to believe that the goods or services offered by him are the
goods or services of the plaintiff.
iii)
Demonstrate that he suffered or he is
likely to suffer damage by reason of the erroneous belief created by the
defendants misrepresentation.
vii) Negligence
The tort of negligence is
a legal wrong that is suffered by someone at the hands of another who fails to
take proper care to avoid what a reasonable person would regard as foreseeable
risk.
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