The Common Duty of Care can be extinguished in the following situations

::: Where the occupier has put sufficient and apparent notice and warning of the danger inherent in his property. (A higher degree is needed for child trespassers).

::: Where the occupier has showed and warned the visitor about the dangerous parts of the house.

::: Where the occupier has forewarned the visitor of the hazardous consequences of operating in a part of the house. In Roles v Nathan, chimneysweepers disregarded the warning by the occupier that they should not sweep the chimney when it is lit because of the carbon monoxide it emitted. They died from the smoke and their widows brought claims under occupiers liability. Their claims were dismissed.

• 
  The occupier must have acted reasonably in entrusting the work to the independent contractor.
  
• 
  He must have reasonably ascertained the competence of the independent contractor before entrusting the work to him.
  

::: Consent of the plaintiff (volenti non fit injuria). In Siddorn v Patel (2007) where the plaintiff climbed unto the defendant's garage roof and fell while dancing on the roof. The court held that the law only applied to dangers due to the state of the premises and in this case, the premises was safe it was the plaintiff that carried herself to the roof. In Tomlinson v Congleton Borough Council, concerned a lake in a public park where there was a warning “no swimming”. The plaintiff still went ahead to swim and injure himself because he dived into the shallow part. His claim failed as there was sufficient warning. See also Titchener v British Railway Board.

::: Contributory negligence. See Revill v Newbery.

::: Fault of the plaintiff. Roles v. Nathan.

::: Act of nature/God.

::: Exclusion of liability.

NUISANCE

The law seeks to balance the competing claims of individuals to enjoy their land and the right of others not to be disturbed-Oputa J in Moore v Nnado.

Nuisance has no precise definition. Can ordinarily be likened to annoyance and irritation. “Nuisance” emanates from the Latin maxim nocentia and nocumentum meaning harm.

In Legal parlance, nuisance is any continuous and unreasonable conduct which substantially interferes with comfort and enjoyment.

Nuisance is not actionable per se meaning that the plaintiff must prove damage.

There are two kinds of nuisance¹⁷;

• 
  Public nuisance
  
• 
  Private nuisance.
  

These are activities which threaten the health, convenience, morality, safety and welfare of a community rather than an individual or the whole country. For example keeping deceased animals, obstruction of highway-Section 234 of the Criminal Code¹⁸ and so on. Lord Denning in AG v PYA Quarries stated that a public nuisance is one which is so widespread that we should expect the community rather than an individual alone to take an action to stop it. In AG v PYA Quarries, an injunction was granted to stop the defendants from carrying out their quarrying (mining) activities which was disturbing the neighbourhood. Registrar of Corby Group Litigation v Corby Borough Council (2008)

The Attorney General is the authorised person to sue for a public nuisance so as to prevent a floodgate of suits with the same claims. A private person that wants to sue for a public nuisance can either seek the consent of the Attorney General or show that he has suffered peculiar damage over and above other members of the community. Plaintiffs have challenged this requirement… citing Section 6(6b), 17(1e) and 46(1) of the constitution which encourages/ensures accessibility to the courts.

In Amos v Shell-BP the plaintiff’s claim failed where he sued the defendants for disrupting the public navigable creek by their damming in oil exploration. Holding that the plaintiff failed to prove peculiar damage.

Individual plaintiffs have successfully established peculiar damage in Rose v Miles, where due to the obstruction of a public creek by the defendant, the plaintiff was compelled to offload his boat and transport his cargo by land at a greater expense. In Savage v. Akinriade, where the defendant’s obstruction of a public street interfered with the access of staff, parents and pupil to the plaintiff’s school.

PRIVATE NUISANCE.

A continuous and unreasonable conduct which causes substantial interference with the plaintiff’s enjoyment and use of his land. Hunter v Canary Wharf.

In De Keysers v Spicers Gross Ltd the court granted an injunction against pile driving even though the construction was temporary because it continuously interfered with the neighbours sleep.

Unlike public nuisance, only a plaintiff with interest in the land affected can sue for private nuisance.

FACTORS THE COURTS CONSIDER IN A CLAIM FOR NUISANCE.

::: Duration of the harm or inconvenience. The essence of nuisance is the continuing state of affairs-Page Motors V Epsol and Pewel Borough Council. The harm must be continuous.

::: The Locality and whether the right to commit the nuisance existed from time immemorial: Nuisance differs from locality. The court noted in St. Helen’s Smelting Co v Tipping that a person who chooses to live in the heart of an industrial town should not expect a high degree of peace and quiet. Also in Tebite’s case the court held that what may be nuisance in Ikoyi may not be nuisance in Ebute meta.

::: Ability of the defendant to avoid the nuisance. May v Stoop.

::: Practicability of the relief sought for example the court cannot order an injunction where it would be made in vain. E.g. where it would require constant supervision of the court.

Note that only a person with interest in land can sue for private nuisance-Read v Lyons. Where a land has been let to a tenant, the landlord cannot sue except the nuisance caused a permanent damage to the property. A visitor cannot sue-Maloney v Laskey.

The person that created or authorised the nuisance or the occupier of the land where the nuisance emanates can be sued.

REMEDIES FOR NUISANCE:

1. 
   Abetment: Stopping the nuisance by yourself. This means of self-help may amount to a tort of trespass as such be careful and should not be malicious or mischievous. Unauthorised entry into land is prohibited unless in exceptional situations.
   
2. 
   Injunction.
   
3. 
   Damages.
   

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  Act of an unauthorised stranger.
  
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  Reasonableness of conduct.
  
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  Novus actus: an intervening act.
  
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  Necessity: in order to avoid some imminent peril, the defendant takes an act which causes damage to the plaintiff.
  
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  Statutory authority: Authority granted by statute to embark on an activity. Acts must be within the protection of the statute In LCC v Olutimehin, upon suit for nuisance from smell by disposing sewage, the defendants alleged that they had authority from the Lagos Local Government Act 1959 to remove and dispose night-soil and sewage. The Supreme Court held that the statute only authorised the defendants to remove night soil rather than disposal of sewage or by means of sewers. It was added that it is no defence that the defendant exercised all care and skill.
  
• 
  Triviality or reasonableness of conduct.
  
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  Use from time immemorial/custom in the area. For example industrial area. It is no defence that the plaintiff came to the nuisance- Bliss v Hall.
  
• 
  Public health
  
• 
  Contributory negligence
  

MALICIOUS PROSECUTION.

Lemme give an amateur introduction. Tayo asks Tobe to lend him #3,000. Tobe replies; “if I borrow you this money, I would become as wretched as you”. Tayo presses P. Two days later it was reported that Funke was assaulted on her way to Honours in the Night. Tayo, still annoyed with Tobe reports that he saw Tobe assaulting Funke. The police sues Tobe to court. The Court acquits Tobe due to lack of evidence. Tobe can sue Tayo for malicious prosecution.

The Law seeks to encourage citizen participation in the volunteering of information and the apprehension of criminals but it frowns at unreasonable and unjustified instigation of criminal proceedings against a person. Especially where it ends in his favour.

Malicious prosecution occurs where the defendant maliciously sets the criminal law in motion against the plaintiff and prosecution terminated in his favour. Resulting in damage to the plaintiff’s reputation, person or property.

The elements of malicious prosecution were rightly stated by the court in Balogun v Amubikanhu;

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  The defendant instituted a prosecution against the plaintiff.
  
• 
  The prosecution ended in favour of the plaintiff.
  
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  The defendant had no reasonable and probable cause for prosecution.
  
• 
  The defendant acted with malice.
  
• 
  The plaintiff suffered damage. May be to his person, property or reputation.
  

Mere volunteering of information and leaving at the discretion of the police would not suffice.

In Inneh v Aruegbon, the husband lied to the police that his wife had stolen. This was in a bid to make her return from Benin where she travelled to. She was arrested and brought back. Following the decision in Tewari v Singh the court stated that where the defendant knows of the falsity of his statement, he can be seen as the prosecutor.

In Yeboah v Boateng, the defendants were forced to pay pacification fees (as was customary) to the plaintiff (a ruler) for paying dues to his counterpart without his permission. They went to report extortion to the police who refused to prosecute. They went further to the magistrate court. While the prosecution was ongoing, the AG entered a nolle prosequi which resulted in the discharge of the plaintiff. The plaintiff succeeded in his claim for malicious prosecution. Because their persistence showed that they wanted to set the law in motion. The fact that the defendant had prosecuted on the advice of a solicitor did not extinguish the liability.

If he acts honestly, he cannot be blamed on that.

Where the defendant later finds out facts which make his allegation groundless, he must update the officers/court.

It is for the plaintiff to establish absence of reasonable and probable cause not the defendant.

The defendant’s belief must be based on facts known to him at the time of instituting the prosecution.

The defendant must have acted maliciously: Meaning that the defendant initiated proceedings from an improper motive which is not in furtherance of justice. Balogun v Amubikahun. The defendant had no honest belief in the guilt of the accused. In Turner v Ambler malice was construed where the landlord instituted proceedings against the tenant in order to procure their eviction from the premises. No matter how malicious a defendant’s act was, if he honestly had reasonable and probable cause that the plaintiff is guilty, he cannot be liable. In Usifo v Uke; where two villages were fighting on the right to appoint an ovie. They reported one another to the security. Because they honestly believed that they had the right to appoint ovie, no malicious prosecution.

The plaintiff suffered Damage: Generally, the plaintiff is presumed to have suffered an injury or damage though, sometimes he may be required to prove. He can do this by proving injury to his person, property or reputation. In Yeboah v Boateng the court construed damage to the plaintiff’s reputation because of the proceeding instigated alleging that he extorted the plaintiff. Damage can also be construed where the prosecution caused the plaintiff to be imprisoned or punished-Wiffen v Bailey.

Defences:

VICARIOUS LIABILITY.

Look at this amateur example: Mrs Jollycome is in a hurry to attend her board meeting. She instructs Kunle (her driver) to speed faster and he hits Mrs Coolhead’s car. After arguing, Mrs Jollycome agrees to pay for damages. Upon getting home hangry she finds that there is no food. She instructs Kunle to slap Osa (the housegirl). She then slaps Kunle for not slapping Osa well. Kunle then says; “madam, I should slap her well again abi?”. Mrs Jollycome says “Yes”. Kunle then beats Osa to a coma. The hospital bill is 2million. This should be examined in the Tutorial which may hold.

Introduction: Vicarious Liability is not a tort but a rule of responsibility which makes X liable for the tort of Y because of their relationship and also for fairness, economic and policy reasons. The relationship is usually that of master and servant.

JUSTIFICATION FOR VICARIOUS LIABILITY.

The maxim, qui facit per alium facit per se; he who acts through another acts for himself. Respondeat superior, let the master answer. Atiyah in his work justified vicarious liability on the following grounds:.

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  The employer set the action in motion.
  
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  The employees commit the tort in pursuit of their employer’s profit.
  
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  Glanville Williams noted that; vicarious liability looks for a solvent defendant which is the employer. The employer is in a better financial position to pay damages. They may not feel the effect because they take out insurance policies.
  
• 
  The loss imposed on an employer can be spread to customers by increasing the cost of goods.
  

For an employer to be held vicariously liable for the tort of his servant,

1. 
   The servant (employee) must have committed a tort.
   
2. 
   There must be a master-servant relationship.
   
3. 
   The tort must have been committed in the course of employment.
   

The plaintiff need not pinpoint the particular servant(s) once it has been established that the servant committed the tort-Cassidy v Minister of Health.

Various tests have been suggested to construe whether a master-servant relationship exists.

The court would look at the terms of the contract of employment and lift the veil where necessary-Ferguson v Dawson. Precedents can also be of help. Various tests have been formulated in this regard.

The control test: this test looks at the degree of control exercised. If the employer can determine what is done and how it is to be done, a master-servant relationship would be construed. However, if he cannot determine what and how, the tortfeasor may be regarded as an independent contractor as Salmond observed; an independent contractor is his own master. In Collins v Hertfordshire, a consultant surgeon was seen as an independent contractor.

With the evolution of mankind and specialisation, the control test runs into hitches in its application to professionals like pilots, doctors, lecturers…

In essence, it all depends on the facts and circumstances of each case.

Issues may arise in relation to “Lending a servant”.

Where A lends his servant (C) to B and a tort is committed by C who should be liable?

In Viasystems (Tyneside) v Thermal Transfer (Northern) Ltd, Lord Rix submitted that either the general employer is liable or the hiring employer or both of them should be jointly liable. In this case, both employers were held jointly liable. However, in Blackwater v Plint… and the case of; Various claimants v the Catholic Child Welfare Society; institute of the brothers of Christian schools, joint vicarious liability was rejected.

In Mersey Docks & Habour V. Coggins & Griffiths, the board hired their employee and crane to the firm but retained the power of dismissal and remuneration. While loading a ship, the hired servant injured a person. The general employer was held liable because they retained the power of dismissal and paid wages. This case was approved and followed in Rotimi v Adegunle, the court held the general employer liable where he lent his servant and lorry and there was a collision en route.

In Hawley v. Luminar leisure ltd, the hiring employer of a night club was held liable because it was only labour that was hired.
THE TORT MUST HAVE BEEN COMMITTED IN THE COURSE OF EMPLOYMENT.