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7 Cards in this Set
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Malicious Prosecution |
Kodilinye Malicious prosecution is occasioned where the defendant maliciously and without reasonable and probable cause, initiates criminal proceedings against the plaintiff which terminate in the plaintiff's favor and which results in damage to the plaintiff's reputation, person, or property.
Edmond Chukwuka v. Anthony Olise Okolocha & Ors. In an action for malicious prosecution, the plaintiff must prove that the defendant prosecuted him. That is to say that the law was set in motion against him on a criminal charge. Secondly, that the prosecution was determined in his favor; Thirdly, that it was without reasonable and probable cause; and Fourthly, that it was malicious. The onus of proving every of this is on the plaintiff.
Institution of Prosecution The plaintiff must prove that the defendant prosecuted him or set the law in motion against him on a criminal charge. Danby v. Beardsley A prosecution was thought to be a man actively instrumental in putting law in force.
Inneh v. Aruegbon The general rule is that where a complainant positively insists that the plaintiff be prosecuted for an offense reported, and the Magistrate issues summons, the complainant is obviously the prosecutor.
Mandilas Karaberis Ltd v. Apena In our view, it is clear from Danby v. Beardsley that to succeed, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the plaintiff.
For liability to ensue, there must be some affirmative action on the part of the defendant. Once there is some affirmative action on the defendant's part, it is no defence that the subsequent prosecution of the plaintiff was at the discretion of the magistrate that it was carried on by the police. Obi v. Chukwuma
Balogun v. Amubikahun The purpose of the false report was to teach the respondent a lesson for preventing some people from standing surety for the appellant.
Mohammed Amin v. Jangendra Kumar Bannerjee It was held by the Privy Council that in malicious prosecution the test is not whether criminal proceedings have reached a stage at which they may correctly be described as "a prosecution" but whether it has reached a stage at which damage to the plaintiff results.
Even where the prosecution withdrew the charge before summons or warrant is issued, he is liable for malicious prosecution. Cassey v. Automo-Biles Renault of Canada Limited Where the magistrate received information alleging matters within his jurisdiction and hears and considered such allegations, a prosecution has commenced even though no further steps were taken to issue warrant or summons and even if the information was later withdrawn at the instance of the informant.
Where there is an independent exercise of discretion - where the defendant merely gives information of certain facts which incriminates the plaintiff with a wide room for exercise of discretion either to prosecute or not - the defendant can not be regarded as having instituted the proceeding since the decision to prosecute was not his, but that of the police. Evans v. London Hospital Medical College
Bayol v. Ahemba The CA dismissed the case on grounds that to show that the defendant merely made a report to the police is not enough. The defendant must be shown to have taken further steps to ensure that the plaintiff was prosecuted.
Tewari v. Singh Where the defendant deliberately and knowingly makes a false accusation to the police or to a judicial officer with the result that an innocent person is sent for trial, he would be liable as prosecutor even though the prosecution was not technically conducted by him.
Payin v. Aliwah The defendant knowingly made a false report to the police accusing the plaintiff of stealing some coconut from a plantation.
Where a defendant holds out himself as a prosecutor or allows himself to be so regarded even though he is merely an agent of another, he may be liable for malicious prosecution. Clement v. Ohrly
Canford v. Carlton Bank Ltd A corporation can be liable for malicious prosecution to the extend as a private person will be.
Termination of Proceedings in Favour of the Plaintiff
The prosecution must prove that the prosecution was determined in his favor. A person who has been convicted of a crime cannot maintain an action for malicious prosecution even if he was convicted erroneously. Basebe v. Matthews Wrongly convicted of assault. It was held that the action must fail because the criminal proceedings was not determined in favour of the plaintiff.
Hermiman v. Smith A timber merchant - Conspiracy to defraud. The conviction was set aside because of some procedural irregularity. His action for malicious prosecution succeeded because proceedings terminated in his favour.
Where the plaintiff fails to prove the termination of such proceedings in his favour, the action must fail. Rayland v. Kennedy Where the plaintiff was charged for a particular offence but was convicted of a lesser one, then it is not sufficient termination of the proceedings in his favour.
Where a conviction is obtained by fraud and still stands, the plaintiff cannot succeed in malicious prosecution even if it is one where there is no right of appeal. Everret v. Ribbands Where the plaintiff's conviction at the lower court was set aside on appeal, he is entitled to sue for malicious prosecution.
Where the acquittal was based on technicality, it is sufficient determination of proceedings in the plaintiff's favour. Wicks v. Fenlham
What is ultimately required is that a court of competent jurisdiction must have given a pronouncement of the discharge of the plaintiff in the criminal prosecution, although the end of the case need not be a final and conclusive one. Barau v. Chaba If the court refuses to commit for trial a person charged before it, the particular proceeding is concluded although it may be lawful to institute a fresh prosecution for the same plaintiff. Even though the plaintiff has been convicted of a lesser offence or had been acquitted on technicality, for instance a defect on the indictment, the requirement is also satisfied if the defendant discontinued the proceedings.
Absence of Reasonable and Probable Cause
Hicks v. Faulkner Reasonable and probable cause means an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state if circumstances, which assuming them to be true, would reasonably lead any ordinary, prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.
Glinsk v. Mclver It means there must be a cause i.e sufficient grounds, for thinking that the plaintiff was guilty of the crime imputed... the prosecutor has not got to test the full strength of defence: he is concerned with the question of whether there is a case fit to be tried.
Garba v. Maigoro The court held that the plaintiff's action for malicious prosecution failed because the defendant, as per the circumstances of the case had an honest belief in the guilt of the plaintiff. His vehicle was set on fire and he suspected his political rival.
The facts upon which the defendant based his belief must be one within his knowledge at the time of the institution of the prosecution. Delegal v. Highley It was held that the defendant cannot rely on facts showing the guilt of the accused because they were altogether independent if the existence of facts since he had knowledge of them for the first time after the charge was made.
In establishing reasonable and probable cause, evidence showing a prima facie case against the accused is sufficient. Dawson v. Vasanda The evidence on which the plaintiff was charged for conspiracy was based on the evidence of an accomplice. It was held that he might well have had reasonable and probable cause.
Eriavbe v. Okorie & Others Mere suspicion will not furnish evidence of the existence of reasonable and probable cause.
It is for the plaintiff to establish lack of reasonable and probable cause and not for the defendant to prove its existence. Yeboah v. Boateng
Malice
Stevens v. Midland Countries Rly Anderson, B saw malice as any motive other than that of simply instituting proceedings for purposes of bringing a person to justice.
Barau v. Chuba The term malice... is not to be considered in the sense of spite or hatred against an individual but of malus animus and as denoting that the party is accused by improper or indirect motive...
Nzekwu v. Gbazuzi The court must always inquire into the existence of malice since it is fundamental in an action for malicious prosecution.
Haddrick v. Heslop Where the basis of the prosecution was the defendant's intention to close the plaintiff's mouth in another pending legal proceeding, it was held that this was good evidence of malice.
Tuner v. Ambler Malice was established where a landlord instituted criminal proceeding against the tenant for purposes of evicting him from the premises.
Glinski v. Mclever Malice was taken proved where the purpose of prosecution was to punish a person for evidence he gave against the police.
Ilo v. Onyeanachi Nwokolo Where the defendant makes false complain to the police for the purpose of punishing the plaintiff for having lodged a complaint against him before the police on a previous occasion imputing certain criminal acts to him, malice was inferred.
The burden of proving malice is on the plaintiff, and this is usually discharged by showing that the motive for the prosecution was improper judging from the circumstances of the case. Balogun v. Amubikahun
Eriavbe v. Okotie & Ors, Dominique Rowlands v. Anglo-colonial Trading Cor. Limited Where the plaintiff proves malice, the defendant must negative its existence by evidence or else he will be liable.
Arbrath v. North Eastern Rly Co. The plaintiff must show that the proceedings of which he complains of are instituted in malicious spirit, that is from an indirect and improper motive and not in furtherance of justice. Unless he so proves, the plaintiff cannot succeed in an action for malicious prosecution.
The lack of belief by the defendant of the plaintiff's guilt may provide evidence of both malice and lack of reasonable and probable cause. However, it is settled law that mere proof of malice does not supply evidence of lack of reasonable and probable cause.
Johnstone v. Sutton From the most express malice, want of reasonable and probable cause can not be implied.
Tempest v. Snowden Even though a prosecutor be actuated by the most express malice, nevertheless he is not liable, so long as there was reasonable and probable cause...
Usifo v. Uke To succeed in an action for malicious prosecution, the plaintiff must prove inter alia that the prosecution was without reasonable and probable cause and that the fact that the prosecution was instituted maliciously does not, in itself, establish that it was instituted without reasonable and probable cause. Damage Rayson v. London Treamways Co. Damage was established where the plaintiff was accused of having travelled on a bus without paying the fare as this was an imputation of dishonesty and cheating, which has an adverse effect on his reputation. Wiffen v. Bailey There was no scandalous charge to his fame. If the plaintiff had been prosecuted for any crime which could lead to imprisonment first instance, it does n't matter that he was not actually imprisoned, this is sufficient damage to his person. Berry v. Baitise Transport Board With reward to damage to property, it is sufficient for the plaintiff to prove that he incurred expenses in defending himself e.g. getting a lawyer and paying professional fees and transporting him to and from court. |
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Strict Liability: The Rule in Rylands v. Fletcher |
The defendant, a mill owner employed competent independent contractors to construct, a reservoir on his land to provide water for his mill. In the course of the work, the contractors came upon some old shafts and passages on the defendants land. They communicated with the mines of the plaintiff who was the defendants' neighbour, though no one suspected this as the shafts appeared to have been filled with earth. The contractors did not block the shafts and when the reservoir was filled, water escaped from it through the old shafts and flooded the defendant land. The defendant was not negligent though the contractors were. In an action by the plaintiff, the defendants were held liable under what has now come to be known as the rule in Rylands V. Fletcher.
The appeal of the defendants to the Court of Exchequer and House of Lords proved unsuccessful. From the facts of the case, the conduct did not come within the scope of any existing tort. It was neither trespass as the damage was not direct, nor nuisance as it was not due to any state of affairs or recurrent condition on their land nor were they careless as to be liable for negligence. Blackburn J. in the Court of Exchequer Chamber based the basis of their being held strictly liable essentially on the following proposition. 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 as his peril. and if he does not do so, is prima facie answerable for damage which is the natural consequence of its escape.
It should be noted that an additional requirement by the House of Lords as per Lord Cairns for strict liability is that the defendant must have made a "non-natural use" of his land.
Where the thing brought and accumulated on the land is for the mutual benefit of both parties, the rule will not apply or where the defendant was not responsible for the accumulation, he is not liable.
Smith v. Pennycuick V.C. the court took the view that the rule could not be invoked against a landlord who let his premises to undesirable tenants because he had no control over the premises, while it is a basic requirement of the rule.The person liable under the rule in Rylands v. Fletcher (1808) LR 3HL 330) is the owner or controller of the dangerous "thing" and this is normally the occupier and not the owner of the land. A landlord who parts with possession of the demised property in favor of a tenant can not in any sense be known to the law or be regarded as controlling the tenant on property still occupied by him.
2. Escape NEPA v. Alli it was held that the rule applied to the escape of electricity because electricity being a dangerous thing, the owner thereof should exercise care that it does not escape and injure consumers. If they do not, the rule in Ryland v. Fletcher applies.
According to the court: The appellant generates electricity, provides bulk supply of the same for distribution and provides supply of electricity to consumers in Nigeria. It is my view that electricity is a dangerous thing being handled and carried by the appellants... The degree of care must be proportionate to the degree of risk involved.
Unless there is an escape of the substance accumulated from where it was kept, there will be no liability under the rule.
Read v. Lyons, & Co. Ltd. In that case, the plaintiff, a lady factory inspector in the employment of the Ministry of Supply and Transport, was an inspector of ammunition in the defendants' ammunition factory, In course of her duty at the defendant's factory the explosion of a shell that was being manufactured injured her. In an action under the rule in Rylands V. Fletcher, the defendants were held not liable because there had been no escape even though it was admitted that explosive shell were very dangerous. In the course of its judgment, the court defined escape as:escape from a place where the defendant has occupation or control over land to a place which is outside his occupation and control.
Umudje v. Shell B.P Petroleum Development Co. of Nig. Ltd the plaintiffs alleged that the defendants, in course of oil exploration in their area, inter alia, had accumulated oil waste on the land under their control, and that such oil escaped into the plaintiff's land and caused damage there. It was held that the defendants were liable since it was proved that the oil which they accumulated in a pit in a land under their control had escaped and polluted ponds and streams killing fishes there.
3. Non-Nature User The rule only applies where the defendant made a non-natural use of land. The term, non-natural uses, has two distinctive meanings in this tort:a) That which exists by nature and is not artificial and this was the original use when Rylands V. Fletcher was decided.b) It also means, that which is ordinary and usual even though it may be artificial and the courts have usually adopted this meaning.
Richards v. Lothian where the Privy Council said that: "It must be of some special use bringing with it increased danger to others and must not merely be the ordinary use of land or such a use as is proper for the general profit of the community".
Equally Important is Lord Goddard CJ's dictum in Hamson v. Wearmouth Coal C. Ltd Sunderland Gas Co. to the effect that a person who brings "a dangerous" thing on his land and allows it to escape, thereby causing damage to another, is liable to that other, unless he can show that the escape was due to the conscious act of a third party, and without negligence on his own part".
What constitutes a non-natural use of land is a question of fact and the courts take into consideration all the circumstances of the time and practice of mankind, so that a thing or activity that may be regarded as dangerous or non-natural user today, may not be so tomorrow.
Rainham Chemical Works Ltd. v. Belvedere Guano Co. In Rainham's case, the defendant carried on the manufacture of explosives which explosion caused damage to the plaintiff, a neighbor. The defendants were held liable because the use of their land for the manufacture of explosives was non-natural use of land.
Read v. Lyons Lord Macmillan stated that: I should not hesitate to hold that in these days and in an industrial community it is a non-natural use of land to build a factory and conduct the manufacture of explosive.
Giles v. Walker thistle seeds were grown in large quantities from the defendants land to that of the plaintiff. Though the case does not come strictly within the Rule in Rylands v. Fletcher the court held that there can be no duty as between adjoining occupiers to cut the thistles which were the natural growth of the land.
Crowhurst v. Amersham Burial Board the defendant planted on their land yew tree which grew and projected over to the land of the plaintiff on which cattle was pastured. The leaves of yew trees are poisonous to cattle. The plaintiff's horse ate some of the leaves and died. The defendants were held liable, as it was not a natural use to plant a poisonous tree on the land.
Halie v. Jenning Bros. The plaintiff was the owner of shooting gallery on the ground floor of a building leased from the defendants for that purpose. The defendants occupied adjoining ground on which they erected an amusement called "Chair O Plane", a devise that whirled customers around in attached chairs at a considerable high rate of speed. While a customer was riding in a chair and fooling about in it, the chair became loose and struck and injured the plaintiff. The court in holding the defendant liable asserted that the contrivance was a dangerous thing in itself and therefore it was non-natural use of land to constitute liability under Rylands v. Fletcher.
Defenses to the Rule
1. Consent of the Plaintiff
Where the plaintiff had consented to the source of the danger either expressly or by necessary implication and the conduct of the defendant had not been negligent, he cannot be liable. It is a specie of the defense of volenti non fit injuria except that the courts have taken particular notice of it.
Peters v. Prince of Wales Theatre Co. Ltd the defendant leased to the plaintiff a shop in a building, which contained a theatre and, over the plaintiff's shop, a rehearsal room. In that room at the time the lease was granted, there was to the plaintiff's knowledge a sprinkler system installed as a precaution against fire. The system extended to the plaintiff's shop. In a thaw following a severe frost, water poured from the sprinkler in the defendant's rehearsal room and damaged the plaintiff's stock-in-trade. The defendants were held not liable, as there was no negligence on their part. Rylands V. Fletcher was not applicable because the plaintiff has given consent to the existence of the sprinkler, which he knew of when he took the lease.
Posser v. Levy If the escape was due to the negligence of the defendant he will be liable.
2. Common Benefit Where the source of the danger is for the common benefit of the plaintiff and the defendant, and the defendant is not negligent, he is not liable for the escape. It is similar to the defense of consent of the plaintiff.
Carstair V. Taylor the plaintiff had hired from the defendant the ground floor of a warehouse whose upper part was in the occupation of the defendant. Water from the roof was collected by gutters into a box from which it was discharged by a pipe into the drain. A rat gnawed a hole in the box and water leaked through it and damaged the plaintiffs' goods. The defendant was held not liable because the water pipe system was for the common benefit of both of them.
3. Act of a stranger Where the escape of the source of danger is caused by the act of a stranger, provided that the defendant was not negligent the rule will not be applicable.
Box v. Jubb the overflowing of the plaintiff's reservoir was partly due to the acts of a neighboring reservoir owner and the defendant was held not liable.
Richards v. Lothian the defendant was the occupier of business premises, who leased part of the second floor to the plaintiff. On the fourth floor was a men's toilet containing a basin for the use of the tenants as well as persons in the defendant's employment. The plaintiff's stock-in-trade was found seriously damaged by water from the basin on the fourth floor. Evidence showed that the waste pipe had been blocked with various articles like nails, penholders, strings and the water tap turned on. The defendant's caretaker had found the lavatory on proper order at about 10.pm the previous night. The court held the defendant not liable because the matter complained of took place through no default or breach of duty by the defendant but was caused by the stranger over whom and at the spot where the defendant had no control.
Perry v. Kendericks Transport Ltd. the basis of the defense is the absence of control by the defendant, on whom the onus of proof lies. In this case the defendant was held liable where children threw match into an empty petrol tank, which exploded and injured the plaintiff.
North Western Utilities Ltd. V London Guarantee However, where the defendant could reasonably have foreseen or anticipated the act of the stranger, he cannot escape liability.
A trespasser is a stranger for this purpose. However, an occupier cannot be exempted for the acts of his servants, lawful visitor, members of his family as well as an independent contractor (unless it is entirely collateral) since he has control over them. Where the source of danger was created of the defendants predecessor in title, unless he knew or ought reasonable to have known he will escape liability.
4. Statutory AuthorityThe rule may be expressly or impliedly excluded from application by a statute. Whether this is so or not depends of the statute.
Green v. Chelsea Water Works the defendants were authorized by an act of parliament to lay mains for the supply of water. A main belonging to the defendants burst and flooded the plaintiffs' premises. The defendants were obliged by statute to maintain water supply. The court held that the bursts were inevitable from time to time and in the absence of negligence there was no liability.
However, the statute must have given a specific power to do such act. Mere permissive power is not enough.
Charring Cross Electricity Co. Ltd v. Hydraulic Power Co. The defendants were authorized by statute to supply water for industrial purpose. They had permissive but not mandatory power to do so. One of their pipe burst and caused damage to the plaintiff. It was held that the defendants had no exemption upon the true construction of the statute.
Once the power given to an authority is mandatory with saving clause or not, the authority cannot be liable for anything done pursuant to the statute once it is not negligently done.
5. Act of God or Vis Major Where an escape was due to natural causes without human intervention and where no foresight could have provided against it, the defense of act of God avails. The case of Rylands V. Fletcher itself recognized this defense.
Nicols v. Maryland The defendant had an artificial lake formed by damning a natural stream. An extraordinary rainfall of great intensity broke down the artificial embarkment and the rush of escaping water carried away four bridges in respect of which damage the plaintiff sued. The defendant was held not liable for an extraordinary act of nature, which she could not have foreseen.
The courts nowadays are usually reluctant in accepting this defense except in extreme circumstances. Whether the cause of the escape amounts to an act of God or not is a question of fact. With the increase in human knowledge the scope of unpredictability have become limited.
Greenock Corporation V Caledandan Rly the House of Lords rejected the defense of act of God and criticized the finding in Nicols v. Marsland. The defendant corporation constructed a concrete paddling pool in the bed of a stream for which purpose they altered the course of the stream thereby obstructing the natural flow of the water. Owing to a rainfall of extraordinary intensity and violence, the stream overflowed and flooded a public street and caused damage to the plaintiff's property. The corporation was held liable because according to the House of Lords, the rainfall was not an act of God since the defendant interfered with the natural course of the stream and could have foreseen the danger inherent in his doing so. The defense of act of God was rejected. 6. Default of the Plaintiff The plaintiff cannot recover where his act or default was the sole cause of the damage. Where the plaintiff knew the danger and probably the cause of damage was by his act or omission, he cannot complain.
Ponting v. Noakes where the plaintiff's horse reached over to the defendant's land, nibbled some poisonous tree and died. It was held that the plaintiff cannot recover for the horses act of intrusion and that there was no escape of vegetation.
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Malice |
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Deceit |
Hedley Byrne V. Helier and Partners The rule in this case established that negligence or careless statements which result in economic loss can give rise to a cause of action in negligence.
Servet H Law of Torts, London: Butterworths The tort can be defined as a false representation made by the defendant knowingly; or without belief in its truth or recklessly careless, whether it be true or false with the intention that the plaintiff should act in reliance upon the representation, which causes damage to the plaintiff in consequence of his reliance upon it.
Deceit emerged distinctly as a tort in the case of Pasely v. Freeman where 'A' falsely represented to 'B', the plaintiff that 'C' was a person whom 'B' can conveniently transact business with on credit. In relying upon this representation B entered into a transaction with C and suffered loss. A' was held liable for deceit.
Derry V Peek for an action in deceit to succeed, the plaintiff must prove that the defendant made the statement either knowing it to be false or being indifferent as to its truth or falsity. The following must be established by the plaintiff for a deceit action.
i) That there was a false representation of fact.
ii) That the defendant intended that the false representation be relied upon by the plaintiff or by a class of person of which the plaintiff belongs.
iii) That the plaintiff did, in fact, rely on the representation and suffered damage.
iv) That the defendant knew the representation to be false or had no belief in its truth.
False Representation of Fact Once the defendant conducts himself in a manner calculated to deceive the plaintiff and other essential elements of the tort are present, he is, to that extent, liable for deceit as if he has expressly made a false statement of fact.
Martins V. Adenugba. Brooke Acting C.J. made this position very clear in 1946 in this case. The defendant went to the registry with the plaintiff to contract a marriage under the Act. He left the plaintiff outside and went inside the office alone purporting to have gone in to complete the formalities of marriage but which he did not do. On the same day, they proceeded to St. Peter's Church Lagos, for blessing in the Church and the plaintiff was induced to believe that she was married to the defendant. When the plaintiff discovered that no valid marriage had taken place, she instituted an action for breach of promise. It was held that she was not only entitled to recover damages but also could sue on deceit.
R v. Barnard Barnard entered a shop and falsely represented himself as an academician by putting on academic cap and gown. He was held liable for deceit as his conduct amounted to misrepresentation of fact that he was a member of the Oxford University Community.
The crux of the tort of deceit is positive misrepresentation of fact. So, active concealment of the truth, whereby the plaintiff is prevented from getting information, which he otherwise would have got, is sufficient misrepresentation even though no positive mis-statement is made.
The House of Lords gave this decision in Peek v. Gurney and succinctly couched it thus: There must be some active mis-statement of fact, as the withholding of that which is not stated makes that which is stated absolutely false. Fraudulent mis- representation thus provides that raw material for the successful maintenance of an action in the tort of deceit.
James v. Mid Motors (Nig.) Ltd the plaintiff bought a car from the defendant company on hire purchase. The company's branch manager refused to deliver the car to the plaintiff unless the latter took out a comprehensive insurance cover for the car. The manager falsely represented to the plaintiff that he had the authority to issue the policy, being an agent of the insurance firm. The plaintiff obliged. But on presenting claims for damages incurred via an accident, the plaintiff discovered that the insurance firm was fictitious. The company was vicariously held liable in deceit for their manager's misrepresentation, as to the existence of the insurance company.
Not only that, the defendant may also be liable in deceit, where he manifestly and undoubtedly approved a misrepresentation made by a third party.
Bradford Third Equitable Benefit Building Society v. Borders. Lord Maugham : This is the basis on which, 'Rumour mongers' who through the adoption of a statement they knew to be false or had no reason to believe of its truth may be liable for deceit, subject to the proof of other elements of the tort.
Where also a statement is capable of bearing at once, a true and false interpretation and the defendant knows of the falsity, there is a false representation for the present purpose. The most important factor is for the defendant to know of the false statement.
However, it should be noted that it is not totally correct to aver that promises are not statements of fact. It is erroneous in that every promise involves a statement of intention as to future conduct. The defendant would not be held liable for the tort of deceit, if for one reason or the other, he fails to accomplish the promise, but may however be responsible for deceit, where it is proved that at the time of making the promise, he had no intention of fulfilling it.
Eddington V. Fitzmaurice where the directors of a company were deemed liable for deceit in procuring the public to subscribe for debentures, by falsely representing in the prospectus that the loan was to be used in developing the capital assets of the company, when the truth was that the directors intended using it in off-setting outstanding debts.
This is very common in Nigeria especially in the last few years where companies and banks directors invest loans derived from debentures into ventures that they are not meant for, or even misappropriating the funds. These directors, ordinarily, should be held civilly and criminally liable for these fraudulent and sharp practices under the doctrine of lifting the veil of the institutions. S. 506 Companies and Allied Matters Decree 1990, dealing with fraudulent trading Re: William Leiton
Statements of opinion may ground an action where they are geared at defrauding the plaintiff. An expression of opinion often suggests the fact that the maker has reasonable grounds for it, but where the contrary is shown; the maker may be guilty of deceit. Note however, that an honestly held opinion cannot be a fraudulent misrepresentation, however foolish or ill-founded.
Also the view is largely held that a mis-statement of fact is insufficient misrepresentation for the purpose of grounding an action in deceit. But text writers have posited that mis-statements of law ought, ordinarily, to be sufficient misrepresentation of fact for purposes of grounding an action in deceit. The only caveat, there, is that the parties should not be on equal footing with respect to knowledge of the law.
West London Commercial Bank v. Kitson the directors of a company were held liable in deceit for misrepresenting to the plaintiff that they had legal power to accept bills of exchange, whilst knowing fully well that the Act never empowered them to do do.
Ordinarily, silence cannot amount to fraudulent misrepresentation of fact sufficient to ground an action in deceit." This is aligned with the maxim "Caveat Emptor" (Let the buyer beware) which operates in the sale of goods. Section 14 Sale of Goods Act 1893
Keates v. Cadogan that a landlord, who let out a premise without stating that it was in a dilapidated state, was not liable for deceit since he made no positive representation as to the condition of the house.
There is no duty to disclose imposed on the defendant.
Moriamo Ode v. J.P. Sick & Co. the defendant employed the plaintiff's brother as a salesman. He incurred a loss of £650, and was consequently dismissed. The plaintiff's brother was later re-employed on the condition that she stood surety for him. The brother subsequently recorded further losses, which necessitated the plaintiff being asked to make good the losses suffered before and after the employment of her brother. The defendant was not duty-bound to disclose the previous losses incurred by the plaintiff's brother to the plaintiff.
U.A.C. v. Paul Jazzar whose facts were in pari materia to those of Moriamo Ode (Supra). The court held that the plaintiffs had no duty to disclose the earlier losses in the absence of any enquiry by the defendant.
Yet there are some limitations to the doctrine of silence or non-disclosure. They maybe statutory or equitable, e.g. insurance contracts, family arrangements, sale of land, partnership, company and fiduciary relationship. There is the duty to disclose relevant facts in the above stated instances.Partial silence and fragmentary statements of fact may ground a cause of action in deceit, if that which is withheld positively distorts that which is stated. This is premised on the maxim "Suppressio veri est suggestio falsio" (Suppression of the truth).
Dimock v. Hallet the court held the non-disclosure of an information to amount to deceit where a vendor who stated that his property was fully let omitted to state that the tenant had been given quit notice.
John Holt and Company Ltd v. Oladunjoye. The plaintiff described and held out one Killa, one of their produce buyers, who had incurred financial loss as, "a good produce buyer" to the defendant who subsequently agreed to guarantee Killa for a new agreement. The defendant was not informed of the previous transaction with Killa. The court held the plaintiff's failure to disclose previous transaction as amounting to deceit.
There is fraudulent misrepresentation where a statement by the defendant was accurate when it was made but owing to a change of circumstances of which the defendant has become aware, it ceases to be true. It has to be proved too, that the defendant remained silent, thereby inducing the plaintiff to act on the basis of the original statement.
Briess v. Woolley the court held that what mattered was whether the statement was false at the time when the plaintiff acted upon it.
Curtis v. Chemical Cleaning and Dyeing Co. Ltd it was held that a statement that an exclusion clause, inserted into a dry cleaning agreement for the benefit of the defendant only carried damages as to beads, whereas it embodied damage to the entire subject-matter, constituted deceit.
Breach of statutory duty to disclose a piece of information may also ground an action in deceit.
S.117 of the Companies and Allied Matters Decree 1990 provides that a prospectus issued by a company inviting members of the public to subscribe for shares should be in consideration of the total number of shares authorized in the memorandum of association.
Furthermore, there is yet to be a clear decision, judicially, in a situation where the defendant, having made a statement later finds out that it is false but refuses to disclose this to the plaintiff who subsequently relies on that statement. It is believed that if it is a contract where only one party alone can know the material facts se.g. Contracts of Insurance (as stated earlier on) that party has a legal duty to disclose the information.
Intention that the Representation be acted upon Intention here is not synonymous with proof of intent to cause damage. Arguably, there are three categories of representees namely:
i) Person to whom the representation is made and his authorized agents.i) Persons to whom the representor intended the representation to be passed on to, and
iii) Members of a class at which the representation is directed e.g. the general public or a class of timber merchants.
Peek v. Gurley House of Lords it was held that a person who had purchased shares in the stock market on the faith of the false statements in the company's prospectus could not recover in deceit against those responsible for the prospectus as they had only intended subscription for shares from the company, and not subsequent purchases from the market. As an obiter dictum, the court held that the purpose of issuing a prospectus was to induce people to apply for shares, and not to lead them to buy shares from existing shareholders. Hence the plaintiff could not have come within the class of persons at which the advertisement was directed, since he did not apply for shares directly from the company.
On the corollary, the defendant would be held liable where the misrepresentation is transmitted to a third party with his knowledge and consent.
Pilmore v. Hood where a party who failed to purchase the defendant's house, communicated the price to the plaintiff (a subsequent purchaser) with the knowledge and consent of the defendant, whilst the latter was aware of the falsity of the price. The defendant was held liable for deceit.
However, the position would be different where the defendant was not aware that the representation was passed on, or was going to be communicated to a third party. In that case, such a misrepresentation would be deemed to have been spent.
Bradford Third Equitable Benefit Building Society v. Boarders such a statement was made with the intention that it should be acted upon by the plaintiff or by a class of persons, which include the plaintiff. So, the plaintiff cannot maintain an action if the misrepresentation was not made with intent that he should act on it. It is immaterial if the party to whom it is made, acted on it to the detriment of the plaintiff.
T.J. Larkings and Sons v. Chelmer Holdings Property Ltd a building contractor alleged that an architect had fraudulently misrepresented to the owner of the building that the work was not complete with the result that the contractor was not paid for the work done. The contractor's action in deceit against the architect shipwrecked, on the ground that although the representation was made with intent that the owner of the building should rely upon it to the detriment of the contractor, it was not made with intent that the contractor should act on it. Hence the contractor did not come within the class of persons contemplated therein.
Similarly, an action in deceit may be based on oral communication or even an advertisement in a newspaper, if the plaintiff shows that he is one of the classes of persons at whom the advertisement or speech is directed. As such, the plaintiff must prove the defendant's intention as to show that the defendant desired or had the purpose that the plaintiff should act on the statement.
Where the statement is made to a limited class of persons, none, save those within that class can maintain an action in deceit against the defendant.
A company's prospectus, for instance, is ordinarily restricted in scope to shareholders or prospective shareholders. They may sue for fraudulent misrepresentation in the prospectus, but purchasers of shares from original shareholders cannot maintain a successful action in deceit against the defendant's company.
Andrews v. Mockford Circumstances which may be regarded as exceptions to the rule above could quite possibly make the prospectus fraudulent, e.g. where the prospectus is supplemented by further lying statements intended to make persons (not original allot tees) buy them in the market.
Cullen v. Thompson It is no defense that the representor never intended the representee to act on it.
Polhil v. Walter Edgington v. Fitzmaurice Brown Jenkinson and Co. Ltd v. Perly Dalton Ltd There is liability whether damage is actually intended or not.
Reliance on the False Statement It is an established principle of law that there is no actionable deceit, unless the fraudulent misrepresentation is intended to cause, and in fact causes the representee to act on it to his detriment.
Wilkinson v. Downtown, the court held that the plaintiff could recover in the same action for deceit for loss suffered through his reliance on the defendant's representation although the illness she suffered was not the subject of the claim.
Yet, no action would lie where the plaintiff's mind was not affected by the misrepresentation, either because he was aware of the fact that it was made, or even though he was aware, he was not induced by it because knew the statement to be false.
Smith v. Chadwick A company's prospectus had an untrue statement that an important personality was a member of the Board of Directors. The plaintiff in an action for deceit admitted under cross examination that he was in no way influenced by the false statement. The court held that no action on deceit could succeed if there is no reliance on the fraudulent mis-statement.
Brown Jenkinson and Co. Ltd. V. Percy Dalton For so long as reliance is proved, the motive of the defendant is irrelevant for he cannot put up a defense that he did not intend the plaintiff to suffer any loss in consequence of the misrepresentation.
There is no fraudulent misrepresentation where the misrepresentation consists of some irregularities in an article sold, which the purchaser reasonably, could have discovered if he had inspected the article. As such, where both the vendor and purchaser have equal access to information with reference to the article being sold, there is no deceit if the purchaser regards the information as true, more so when he is as good a judge as the vendor. But the defendant would be liable, where he proffers an opinion or information to a party who is not on the same footing with him and such information turns out to be untrue.
Central Railway of Venezuela v. Kisch the director of a company made fraudulent statements in a company's prospectus. They were held responsible to a shareholder defrauded thereby even though there was a clause in the prospectus that certain documents could be inspected at the company's premises, and the shareholder would have discovered the fraud had he taken the pains to do so. It should be noted that such a clause as the one in the above case is a veritable instrument of fraud itself.
Sometimes, the courts insist that misrepresentation must be material. This means that it would be a prima facie evidence that the plaintiff relied on the false statement if he acted in a way that a person would likely act in relying on the statement of the defendant.
Armson v. Smith there is actionable deceit if the plaintiff acted in a way ordinary people are reasonably likely to act in reliance on the defendant's statement.
Where the representee does not rely on the statement but independently sets out to verify the true situation himself, he cannot turn around to claim that he was induced into acting by the false statement.
Attwood v. Small the purchaser of a mine was given an exaggerated figure as the earning capacity of the mine by the vendor. The purchaser, not satisfied with the figure, delegated his agent to conduct an independent investigation of the mine whose report lent credence to the vendor's overblown figure. The purchaser was denied relief, since he had not relied on the vendor's figure but on his own independent investigation.
A misrepresentation of intention is never actionable deceit. For, if a defendant promises to do something and fails to carry out his promise, ordinarily the plaintiff must look to the law of contract for remedy. But if however, the defendant lacks the will or power to carry out the promise at the time of the statement, there is a misrepresentation capable of giving rise to proceedings for deceit e.g. a commuter, who travels in a commercial bus without any intention to pay for the ticket is liable in deceit.
Therefore, several factors may be responsible for inducing the plaintiff into acting on the misrepresentation. It is not the position of the law that the defendant's false statement must singularly induce the plaintiff into acting.
Edgington v. Fitzmaurice It is sufficient as Lord Bowen opined tritely that the fraudulent misrepresentation was actively operating on the plaintiff's mind at the time of reliance. In that case, the plaintiff was induced to lend money to the company partly because of the fraudulent misrepresentation that the money would be used to improve the company's fixed assets, and partly due to his own mistaken belief that the company's property stood as security for the loan. Despite his own mistaken belief (albeit reasonable), the court held that he was entitled to relief.
There can be no reliance where the plaintiff knows the statement to be false. It must be proved that he had actual and total knowledge of the correct facts.
It is no answer that the plaintiff would have discovered the fraud had he conducted an enquiry.
Sule v. Aromire the defendant represented falsely to the plaintiff, that he was the owner of a piece of land for sale, although in the advertisement which had the suit number he appeared as defendant. That is in relation to a different plot of land entirely. The plaintiff relied on the information and bought the land, had a conveyance made but was not allowed to take possession. The court in awarding judgment for the plaintiff rejected the defendant's contention that the plaintiff would have discovered the fraud, had he made proper enquiry. It is held that the plaintiff was materially misled.
Misrepresentation of opinion could be with regards to statements of fact, which are not actionable for there is no aura of privilege to lie without liability in deceit; so long as the parties are on equal footing. But where the parties are not on an equal footing, there is an actionable tort in deceit.
Knowledge of the Falsity of the Statement
The plaintiff must equally prove that the defendant made the statement knowing it to be false or not caring whether it be true or not.
This principle emerged from the decision of the House of Lords in Derry v. Peek. where it was established that in order to make the defendant liable, he must have made the statement knowingly or without belief in its truth or recklessly, carelessly whether it be true or false. There, Lord Herschell succinctly elaborated the position of the law while defining fraud. He maintained that fraud is established when:i) the maker made the statement knowingly,i) Where the representor had no belief in its truth, andiii) Where the maker was careless, reckless or consciously indifferent whether it be true or not.
However, any blunder, but honest belief in an allegation cannot be deceit.
Derry V. Peek the directors of a company were held not liable in deceit since there was an honest belief that the statement they made was true. Therefore, the plaintiff must prove that the defendant did not honestly believe his representation to be true. Failure to prove that means, that the defendant would not be liable because the plaintiff would not have any reasonable grounds to believe the representation.
Recklessness or carelessness, though may not amount to fraud, it could in some instances furnish sufficient evidence of lack of honest belief.
Abba v. Mandilas Karaberis Ltd Omololu J. adopted the passage hereunder from Halsbury's Law of England: It may now be taken as established beyond all question that whenever a man makes a false statement which he does not actually and honestly believe to be true, that statement is ... as fraudulent as if he had stated that which he did not know to be true or believed to be false indifference or recklessness on the part of the representor as to the truth or falsity of the representation affords merely an instance of absence of such a belief.In discharging the onus on him, as to prove that the defendant has knowledge of the false representation, the burden of proof on the plaintiff is not as high as those of criminal cases. Yet the burden has to be higher than that of the ordinary civil standard.
Hornal v. Neuberger Products Ltd the House of Lords held that however negligent a defendant may be, that is not sufficient to make him liable for deceit.
Damages for False Representation The tort of deceit is not actionable per se. By implication, it means that the plaintiff must prove that he suffered damage as a consequence of his acting on the false representation. The kinds of damage most frequently sought by the plaintiff are personal injury, property damage and financial loss. These are the damage to three of the best things of life namely; health, property and wealth.
Mullet v. Mason fraudulent misrepresentation that a cow was free from disease and the subsequent loss of five other infected cows was held to be recoverable in deceit.
It is also worthwhile to note that in England, the loss of controlled tenancy under the Rent Act, even where there is no pecuniary loss, will suffice as damage. Mafo v. Adams
The general rule is that the plaintiff should be restored so far as money can do it. He should be recompensed to the position he would have been, if the misrepresentation had not taken place, not to the position the plaintiff would have been if the misrepresentation had been true. As far as damage is concerned, there is no need to prove foreseeability. The plaintiff is entitled to recover all the actual damage directly flowing from the fraud.
Damages, as a requirement for the successful maintenance of an action in deceit, had been thoroughly examined under remedies to the tort of deceit in the course of the work.
a) Where it distorts a positive representation. It is usually said that the half truth is as good as a lie and as such, where non- disclosure of an information clearly distorts the nature of one given by the representer, the non-disclosed information may give rise to a cause of action.
Dimmock v. Hallet where a vendor, while describing his property as fully let, omitted to give the information that the tenant had given notice to quit. The court held the non-disclosure to amount to false representation.
John Holt and Co. Limited v. Oladumoye where the defendant represented to the plaintiff, a man known as Killa, as being a good produce buyer, while the man in question had already incurred a loss of £600 to the knowledge of the defendant. On the basis of the positive representation, the plaintiff guaranteed Killa for a new produce buying agreement. The court held that the non- disclosure amounted to a deceit, since it gave a false picture of Killa and induced the plaintiff to guarantee him.
b) Where a representation was true at the time it was made but later turns out to be false to the representor's knowledge and he fails to communicate the representee of the change in position.
Will v. O'Flaragan where at the outset of the negotiations, a vendor of a medical practice who truthfully represented that it was worth £2,000, was held liable in deceit for his failure to inform prospective purchaser of the subsequent fall in the practice.
c) Where there is a statutory duty to disclose.
By S.30 of the Companies Act, a prospectus issued by a company inviting members of the public to subscribe to its shares must reflect the matters contained in the 4th Schedule to the Act. Failure to include such matters will amount to actionable deceit.
d) Where there is active concealment of a fact.
Horsefall v. Thomas For example, where goods have defects to the knowledge of the seller but he refuse to disclose same to the buyer for purposes of making him believe that the goods are in perfect condition.
e) Statements as to intention or opinion. Where a person expresses an intention or opinion without actually having such opinion or intention, will be treated as having made a statement of fact for purposes of an action in deceit. This is because the representer will be taken to have made a false statement of fact as to his existing state of mind.
Bowen, L. J. Edginton v. Fizmaurice The state of a man's mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man's mind at a particular time is, but if it can be ascertained. It is as much a fact as anything else. A misrepresentation as to the state of a man's mind is therefore a misstatement of fact.
Smith v. Land & House Property Corpn where the vendor of a hotel, described the tenant as a "most desirable tenant," thereby concealing his knowledge that the tenant was in arrears of rent. This statement of opinion was held to be one of facts as it seemed to suggest that nothing had occurred which would make the tenant undesirable.
Bissel v. Wilkinson However, a statement of opinion made honestly may not amount to misrepresentation.
Intention that the plaintiff should rely on the statement
To succeed in an action for deceit, the plaintiff must prove to the satisfaction of the court that the defendant intended that the plaintiff should rely on his judgment. This is not in consonant with proof that the mere proof of intention by the defendant that the plaintiff should act on the representation suffices. Edgington v. Fitz Maurice
Langridge v. Levy The statement needs not be addressed to the plaintiff directly mere address to a third party, provided it is with the intention that it should be communicated to the plaintiff is enough. where the statement is directed to a class of persons of which the plaintiff is a member, it suffices as proof of intention on the defendant's part that the plaintiff should rely on it.
In fact, the plaintiff must prove that "the statement was made with the intention that it should be acted upon by the plaintiff or class of persons which will include the plaintiff." Thus, a farmer-plaintiff recovered where he was misled by the advert in a newspaper about a farm sale, because he was one of the class of persons referred to.
Plaintiff must establish that the defendant intended that he (plaintiff) should act of the statement. It is immaterial that it was defendant who communicated the representation to plaintiff, provided he actually intended it to be communicated to him.
V. Hood X, while negotiating the sale of a house to Y, made certain false statement to Y about the house. The transaction fell through. Y passed the information to Z. X then sold the house without correcting the false representation. He was held liable to Z in deceit. Attention on the defendant's part that the plaintiff damage is immaterial and cannot operate.
Of the Falsity of the Statement In an action for deceit, the plaintiff must prove that the defendant or representor made the statement knowing it to be false or not caring whether it be true or false.
Lord Herschell, Derry v. Peek Fraud is proved when it is shown that a false representation is made: (1) knowingly or (2) without belief in its truth or (3) recklessly, carelessly without it being true or false. I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states.
Reese River Silver Mining Co. V Smith the director of a particular company issued a ground prospectus outlining the advantages of a particular mine, the truth of such statement not having been ascertained. The information turned out to be false. The court held it to be deceit.
Reliance by the plaintiff Smith v. Chadwick established the principle that the plaintiff must have acted on the defendant's representation to his prejudice. The false representation must be very material.
Armson v. Smith If the plaintiff acted in a way people are ordinarily likely to act in reliance on the defendant's statement, this would be prima facie evidence that he relied on it.
Brown v. Raphael No action will lie if both parties have equal access regarding information on the goods and the other party regards it as the best. Where the defendant purports to give an opinion or information to one who is not in the same position with him, an action will lie in deceit for any misrepresentation arising therefrom.There is no requirement that the defendant's misstatement really induced the plaintiff to act on it as he did, provided that the misstatement was actively operating in his mind at the time he acted. Per Bowen L.J. in Edginton v. Fitz Maurice
Edginton v. Fitzmaurice it was held to be entitled to recover since he was materially misled into acting.
Smith v. Chadwick Attwood v. Small But where a person was named in the prospectus as a director, an assertion which was in the misstatement, it was held not actionable since the person who took over shares in the company neither heard of the person so named nor was he influenced by the statement in the prospectus.
Dobbel v. Stevens Redgrave v. Hues There can be reliance on a statement, where the plaintiff knew that the defendant's statement was untrue. It must however be established that the plaintiff had actual and total knowledge of the true facts. It is not enough that the plaintiff would have discovered it on enquiry.
Sule v. Aromire in an action for sale of land by A, he represented falsely to the plaintiff that he was the owner of the land in question. In an advertisement which contained a suit number, he appeared as the defendant. The suit in question related to an entirely different plot of land. The plaintiff relying on this, bought the land and obtained a conveyance but was never let into possession, whereby he brought an action against the defendant for deceit. It was contended on behalf of the defendant that the plaintiff cannot succeed since he could have found out the true position of things if he had made enquiries.
Langdride v. Levy Deceit is not actionable per se and as such some actual damage must be proved. Damage may consist of financial loss, damage to property as well as for personal injury.
Doyle v Olby (Lion Mongers) Ltd. Also, James Mid Motors In fact, the plaintiff is entitled to recover all damages flowing directly from the misrepresentation, whether they are foreseeable or not.
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Passing Off |
Massan V. Thorley's Cattle Food Co. The basis of an action for passing off has been captured in the following words:No man is entitled to represent his goods as being the goods of another man: and no man is permitted to use any mark, sign or symbol, device or other means whereby, without making a direct false representation of himself to a purchaser who purchase from him, he enable such purchaser to tell a lie, or to make a false presentation to somebody who is the ultimate customer.
According to an erudite author, Kodilinye: The law on this matter is designed to protect traders against that form of unfair competition which consist in acquiring for oneself, by means of false or misleading devices, the benefit of the reputation already achieved by rival traders.
Draper v. Trist Goddard, L.J. In passing off case, ...the passing off by defendant of his goods as the goods of the plaintiff injures the right of property in the plaintiff, that right of property being his right to the goodwill of his business.
Inland Revenue Commissioner v. Muller & Co's Margarine Ltd: The concept of goodwill itself is in law a broad one, which is perhaps best expressed in the words used by Lord Macnaghten: It is the benefit and advantage of the name, reputation and connection of a business. It is the attractive force which brings in custom. It is one thing, which distinguishes an old established business from a new business at its first start.
The general rule which is applicable in an action for passing off was laid down by Lord Kingsdown in Leather Cloth Co. v. American Leather Cloth Co.,' and it had been previously enunciated in much the same way by Lord Langdale, in the case of Croft v. Day. Lord Kingsdown's words were as follows:The fundamental rule is, that one man has no right to put off his goods for sale as the goods of a rival trader. and he cannot, therefore (in the language of Lord Langdale) in the case of Perry v. Truefitt, be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person.
From early times, the law has recognized that competition between traders is perfectly lawful, however ruinous it may be to those who are the losers. Thus, many ordinary acts of competition were not conceived as tortious even though they were designed to injure another's goodwill. This is clearly a manifestation of the common law maxim, Qui jure suo utitur neminem leadit - he who exercises his legal rights inflicts upon no one any injury.
Elements of the Tort Erren Warnink BV v. J. Towend & Sons (Hull) Lord Diplock enumerated five characteristics which must be present in order to create a valid action for passing off as: (a) A misrepresentation (b) made by a trader in course of trade, (c) to prospective customer of his or ultimate consumers of goods or service supplied by him (d) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonable foreseeable consequence) and (e) which causes actual damage to a business or goodwill of the trader by whom the action is brought.
However, it is intended in this book to compress these characteristics into three namely: misrepresentation, fraudulent intention and deception.
Misrepresentation An express misrepresentation could take the form of direct statement by the defendant that the plaintiff is ultimately connected with the business or that the goods or services of the defendant belongs to the plaintiff. It is also express misrepresentation where the defendant pretends to be acting for and on behalf of the plaintiff, as the latter's agent. For instance, where he opens, reads and replies to letters addressed to or intended for the plaintiff and executes orders contained in such letters.
Ogunlende v. Babayemi the plaintiff and the defendant were partners in a building and civil engineering company, under the name Mercury Builders (Nig.) Ltd. The defendant broke away and set-up his own business under the same name for the purpose of providing similar services as those provided by the old firm. He got and executed a contract meant for the plaintiff, receiving thereby money that was intended for the plaintiff. It was held that the act amounted to passing off.
Masson, Seeley &Co. Ltd. V Emboso Type Manufacturing Co. An implied misrepresentation, on the other hand, is usually inferred from the defendant's conduct. It can be seen in cases involving the use or imitation of a trade mark, trade name or get up associated with the plaintiff, or the use of the plaintiff's price lists or catalogues.
Misrepresentation, though need not be specifically pleaded, it must exist in virtually all cases of passing off. Its importance in a passing off action is a matter of fact to be determined by the judge bearing in mind all the circumstances of each individual case. However, in any case it must be proved. A misrepresentation, which might be harmless to a business in U.K, could be fatal in Nigeria. This is because of the disparity that exists between the two countries in relation to the level of education. In determining cases of misrepresentation in tort of passing off therefore, the court ought to take due consideration of local circumstances, bearing in mind the illiterate who incidentally forms the bulk of customers in Nigeria markets. In line with this, a lot of emphasis has been placed on the distinctive features with which the plaintiff's goods are identified or known by his customers locally.
U.K Tobacco v. Carreras Ltd. the picture of a white man in the plaintiff's cigarettes was held as the common feature with which his cigarettes were identified among the uneducated. Therefore bearing a similar feature was a clear case of misrepresentation and the court disallowed it.
Also, where two persons have been carrying on business together as partners, actionable if one of them decides to break away and set up as business under the partnership name, if the old firm is still y existence. He must not, under any circumstances, suggest that the connection is still in existence or that his former partners employers have ceased to carry on business and he is their successor.
Ogunlende v. Babayemi the plaintiff and the defendant were partners in a construction company. The defendant broke away set up his own business under the same name, for the purpose of providing similar service as those done by the old company. He made no effort to distinguish his firm with that of the plaintiff. He was restrained from further use of the name.
Fraudulent Intention Passing Off cases are often cases of deliberate and intentional misrepresentation, but it is well settled that fraud is not a necessary, element of the right of action, and the absence of intention to deceive is not a defence.
It is essential for the plaintiff to, at least, prove that the defendant's use of his name is unfair although unintentionally, but deceptive.
Niger Chemists v. Nigeria Chemists Ltd. Thus, where the defendant, in spite of the plaintiff's protest, continued to use deceptive marks or names, the logical conclusion is that his action is tantamount to a fraudulent intention to reap where he did not sow and the plaintiff is entitled to an injunction to restrain the defendant from further act of passing off.
Bourne & Co. Ltd. V. A.H. Moore Ltd. No man is entitled, even honestly, to the use of his name, as to describe or make his goods as if they were the goods of another person. This is a general rule and the question as to whether the defendant's action was honest or unintentional is one of fact which will have to be determined based on the facts of each individual case, taking into consideration the evidence of witnesses of both parties, the surrounding circumstances and in a way, the subjective view of the judge. Where the judge is of the opinion that there is no probability of deception, then the action will fail.
Readdaway v. Banham Lord Esher, M.R. observed that the law does not take notice of a fraudulent intention in a man's mind if he does nothing to carry out the fraud.
Fraudulent intention can further be implied from various acts of the defendant as was held in the case of Niger Chemists V. Nigeria Chemists that the use of a name so similar to that of the plaintiff and the setting up of their business so close to the plaintiff, was enough evidence to imply fraudulent intention on the part of the defendant.
Deception On the question of the likelihood of deception, it suffices that the defendant's product is calculated to deceive, that is, likely to deceive, and not whether they had, in fact, deceived. Therefore, the general rule is that proof of deception is not essential in a passing off action.
Nigeria Chemists' case According to Palmer, J. the question is whether the words are calculated to deceive, and not whether they had in fact deceived.
Trebor's case Jones S.P.J. noted that in Parker-knoll v. Knoll International Ltd., Lord Guest stated that:There was no evidence of actual passing off, but that is not necessary. With respect I accept this dictum as correct. Evidence of actual deception is good evidence, but lack of it is not fatal. The decision I have to make is as to likelihood not actuality.
Thus, once the plaintiff has shown that the deception is likely to occur in future, he may be awarded a qua timet injunction.
U.K Tobacco Co. v. Carreras Ltd the plaintiffs were granted an injunction even though they had failed to prove actual deception. Where the defendant induces his own customers to mislead the ultimate consumer, an implied intention to deceive is inferred and there would be no need for proof.
Draper v. Trist it was held that where deceptive goods have been sold to a middleman, the mere presence of such goods in the market entitles the plaintiff to claim damages even though no evidence of re-sale has been given.
In inferring deception, certain factors help the court.First, proximity of the plaintiff and defendant's places of business may help the court in inferring deception.
This was the situation in Nigeria Chemists' case where the court stated:...As a matter of common sense,. when two firms trade in the same street and in the same line of business, one calling itself "Niger Chemists" and the other Nigeria Chemists", there must be a grave risk of confusion and deception.
Also, the court must consider the experience, perceptiveness and standards of literacy of the prospective purchasers of the goods.
U.K. Tobacco's case it was proved that the plaintiffs "Bandmaster" cigarettes had become popular amongst all classes of Nigerians: but the illiterate knew it simply as "ciga-oloyinbo" which means "the ciga which has the picture of a white man." In the circumstance, the court found that there was a strong likelihood that illiterate or uneducated persons might confuse the defendant's cigarette which was christened "Barrister" but which also carried the picture of a white man, albeit in a different cloth. In the plaintiffs' claims, Butler Lloyd, J. stated the applicable principle as thus:...it is well-established principle not only in this country, that the likelihood of deception varies with the intelligence and education of the customers... a trade mark or get-up which might not confuse a literate or educated person could quite easily confuse an illiterate or uneducated one.
De Facto Works Ltd. V. Odumotun Trading Co. the evidence adduced by the plaintiffs revealed that the plaintiff's bread was popular among literate and semi-literate purchasers as "bread oniyelo" which means "bread with yellow colouring" before the defendants started to manufacture and market their own bread with similar yellow get-ups. The court observed:The majority of purchaser are illiterate and could not read. This is an element to be considered with respect to the likelihood of deception..
However, the necessary corollary of this principle, it is submitted, is that if customers are illiterates or ordinary members of public, but in the particular trade or business, a much higher degree of awareness is to be expected, there will be less likelihood of deception.
IMNL v. FMNL it was held that those who patronize courier companies are not ordinary people who can be easily deceived by sheer similarity of names of the parties, thereby eliminating the likelihood of deception.
However, there are exceptional cases where proof of actual deception may be necessary. For instance, deceitful presentation of services.
Renowned performers and entertainers will be entitled to protection for the goodwill they have built in relation to their field of trade.
Sim v. H.J. Heinz Co. Ltd. A singer is entitled to enforce the exclusive use of his voice and to succeed in such an action, he must show proof that the voice being imitated is identified with him alone by members of the public and that its imitation will be injurious to his reputation as a singer.
Niger Chemists' case the plaintiff adduced such evidence in the form of numerous letters, bills and receipts from the third parties which were intended for the defendants but had been mistakenly sent to the plaintiffs.
Lee Kar Choo v. lee Lain Choon Evidence that actual deception has taken place will assist the plaintiff's case, especially if substantial damages are claimed and not only an injunction.
Acts Constituting Passing Off
1. Direct misrepresentation that the Defendant's Goods or Services are those of the Plaintiff
Walter v. Ashton Where defendant offers for sale goods manufactured by him with a claim that they are those manufactured by the plaintiff, it is direct misrepresentation and all the plaintiff needs do is to disclaim such representation and the defendant will be restrained from further making it. In that case, the defendant advertised the sale of his cycles in such a way as to suggest that he was carrying on business as department of, or in connection with, The Times Newspapers. An injunction was granted restraining the defendant from Passing-Off representing that the cycles offered by him for sale were in fact offered for sale by the plaintiffs, or that he was carrying on business as a department of The Times, or in any way holding out The Times to be owners of or connected with his business.
Instances of direct misrepresentation abound. For example, it is actionable for a publisher to advertise and sell a book bearing on the title page, the name of a popular writer if the latter has no connection with the book.
Byron v. Johnston the defendant publisher advertised poems as written by the plaintiff, a famous poet, who in fact, had nothing to do with the poems. The court granted an injunction against the defendant. It is possible that such act is not only damaging to the plaintiff's reputation and goodwill, but may also subject him to legal proceedings if such book carries in it libelous information.
2. Imitation of Trademarks At common law, a trade mark is a design or picture habitually attached by a trader to goods. manufactured or sold by him in order to indicate that they are his merchandise, and by established usage known to the public as possessing that significance.
The Trademark Act in Nigeria does not specifically define a trademark. However, according to S.67(1) of the Act, a mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof.
Millington v. Fox a trademark was defined as any design, picture, mark name or other arrangements affixed to goods which identifies those goods with the plaintiff manufacturer or seller. This definition, it is submitted, is comprehensive enough include the elements enumerated under S.67(1) of the Trademarks Act.
S.3 of the Act, provides that:No person shall be entitled to institute any proceeding to prevent, or to recover damages for, infringement of an unregistered trade mark: but nothing in this Act shall be taken to affect the right of action against any person for passing-off goods of another person or remedies in respect thereof.
In this direction a registered trade mark enjoys protection under both the tort of passing off and the trade marks Act against unlawful infringement by a competitor, in the sense that where such a mark has been passed off, the plaintiff needs only to show evidence of registration.
Patkun industries Ltd. V. Niger Shoes Ltd. In recognition of the protection of trademarks under tort of passing off in Nigeria, Karibi-Whyte J.S.C. observed:...In this country the right of action of passing off relating to the infringement of registered trade marks is statutory and can be found only in section 3 of the Trademarks Act 1965.
Chanral & Co. v. Khawam The respondent was the originator of a particular design in respect of textile goods registered both in the Manchester branch of the Design Registry of the patent office in the United Kingdom and also in Japan. After importing for sale textile goods bearing his registered design, the appellants injected into the market, textile goods of the same design, or a colourable imitation thereof, but of cheaper quality thereby causing the respondent loss of reputation or damage as the appellants were selling at the same price as the respondent. The court restrained the appellants' from importing, selling or exposing for sale in Nigeria the textile goods with which the case was concerned.Thus, where there is evidence of registration and an act of infringement occurs, an injunction will be granted unconditionally.
Trade Marks Act S. 50 Registration of a trademark in effect, gives the plaintiff an exclusive use of the mark and anyone using similar or identical mark will be liable for passing off.
As far as unregistered trade mark are concerned, the Act gives no protection. S. 3 of the Act.
However, if the plaintiff can prove that he has been using such a mark, he will be entitled to protection in a passing-off action.
John Walkden v. Jacob Akinyemi the plaintiffs had been selling their goods under an unregistered trade name for a long period, and the mark had in the meantime become exclusively distinctive of their goods. An attempt by the defendants to pass off the goods bearing a mark similar to that of the plaintiffs was restrained by the court, in an action for passing- off.
G. Gottschalck & Co. Ltd v. Spruce Manufacturing Co. Ltd. the appellants were the registered proprietors of a trade mark which they have applied for years to textile goods manufactured for sale in Nigeria. The principal feature of this trademark is a hand. The respondents also manufactured textile goods for sale in Nigeria, and the trademark applied to their goods also has a hand as the principal feature. The trial judge dismissed the action as he held that the difference between the two marks was clearly apparent. On appeal the Supreme Court held that distinctive and characteristic feature of both marks was the hand, and the respondent' adoption of this symbol as the principal feature of their mark, was calculated to mislead purchasers. An injunction was granted.
Bell & Sons & Co. v. Godwin Aka & Anor The appellant filed a notice of objection to the registration of the trademark of the respondents. The latter applied, under S. 19(2) of the Trademarks Act to the High Court of Lagos for an order that the Registrar of Trademarks should proceed with the registration of the trademark. The trademark sought to be registered was a label on bottles containing the same commodity like the one sold by the appellants and in exactly the same colour and combination as in registered trademark of the appellants; the only difference being that instead of the block capital 'B' written in black as an inset on the design of the appellants, the respondents' design bore an inset of block letters 'A' of the same size as that on the appellants' but in red. The trial judge found for the respondent. On appeal to Supreme Court, it was held that the design sought to be registered by the respondent so clearly resembles that of the appellant so as to be calculated to deceive.
Alban Pharmacy Ltd. V. Sterling Products International Inc the appellant operating in Nigeria has their parent company in New York. The appellants are the proprietors of the Trade Mark "Castorial" registered in Nigeria on 26 November, 1958, their product is a special laxative for children and the mark on the bottle is a tiny picture of five children with the words "Flecher's Castorial". The applicants, Alban Pharmacy Ltd, also registered the word, "Castorina" for a medical product, The marks shows the device of a baby in a large picture on the bottle bearing the word "Castorina". At the trial, the court found in favour of the plaintiff, stating that the two products when juxtaposed are not likely to deceive. On appeal, to the Supreme Court, it was held that the latter is likely to cause confusion in the minds of the public. Ademola C.J.N. observed: "As all the cases show, the court must consider the person with imperfect recollection, the incautious and the illiterate as well as those who may place an order by telephone.
Beecham Group Ltd. V. Essdee Food Products Nig. Ltd. the plaintiff/respondents sued the defendants/appellants for infringement of their trade mark "Lucozade" a form of chemical substance used as medicine and pharmacy, transferred to them in 1974 by Lucozade Ltd. of Middlessex, England. The defendants/appellants had put in the market and offered for sale and sold a non-alcoholic beverage under a trade mark called "GLUCOS Aid". The trial judge entered judgement for the plaintiffs and restrained the defendants/ appellants from infringing the respondents registered trade mark. The decision was affirmed by the Appeal Court. see also Pfizer Products Ltd. v. United African Drug Co. (unreported) Suit No. LD/1387/83 of 29th November, 1985.
3. Imitation of Trade Name
The general rule is that a person can freely use his own name, or one which he has acquired by reputation, in connection with his own business and this right seems to be absolute. If his use of it inflicts damage on someone, it is a case of damnum absque injuria (loss without wrong). The probability that the public will be occasionally misled by the similarity of names is not sufficient to justify legal interference.
Turton v. Turton Lord Esher If all that a man does is to carry on the same business, and to state how he is carrying it on, the statement being the simple truth-and he does nothing more with regard to the respective names, he is doing no wrong.
Bernadin et Cie v. Pavilion Properties Ltd. the plaintiffs, owners of the Crazy Horse saloon in Paris, failed in an action against defendants who set up a similar establishment in London and used the same name.
However, this basic rule is qualified to an extent by the tort of passing off, so that an injunction may be granted against a person even though he does no more than use his own name if by so doing, he falsely represents that the goods are the plaintiff's.
Parker-Knoll Ltd. V. Knoll International Ltd. both parties were manufacturers of furniture, the plaintiff being a company well-known in the United Kingdom and the defendant, an American Company which had only recently began trading in England. Notwithstanding that the defendant did no more than its name on its furniture, the House of Lords, by a majority granted an injunction to restrain it from continuing to do so without distinguishing its goods from those of the plaintiff.
Hendricks v. Montagu The Universal Life Assurance Society was granted an injunction to restrain the defendants company, incorporated afterwards, from carrying on business under the name "Universe Life Assurance Association," James L.J. stated the raison d'etre behind the court's decision thus:... Is there such a similarity between those names as that in the ordinary course of human affairs likely to be confused with the other? Are persons who have heard of the "Universe" likely to be misled into going to the Universal? I should think, speaking for myself, very likely indeed. Many people do not care to bear in mind exactly the very letters of everything they have heard of.
In commerce, to acquire such distinctiveness, it is necessary for the trade name to have been in use for a considerably long period of time.
Licensed Victuallers' Newspapers Co. v. Bingham that three days use of the name of a new weekly newspaper was insufficient to give the owners any right to stop the use of the name by a rival newspaper.
Trade name has been defined as a name under which goods are sold or made by a certain person and which, by established usage, has become known to the goods of that person.
Hines v. Winnick Vaisey, J. said of a trade name: if a man, be he a musician, portrait painter or writer of articles in newspapers get to be known under a particular name, that name becomes inevitably part of his stock-in-trade and apart from some special contracts or anything of that kind, he is entitled to say that, it is his name and any one who adopts or causes the adoption of that name by some other person is inflicting on him an injury. Niger Chemist Ltd. V. Nigeria Chemists the plaintiff was a limited liability company carrying on the business of chemists and druggists for several years and with various branches in the former Eastern Nigeria. The defendant subsequently registered a business name, "The Nigeria Chemists" at Onitsha, carrying on the same type of business as the plaintiff. The plaintiffs brought an action against the defendants contending that their use of name was so similar to the plaintiffs, as to deceive and therefore sought an injunction to restrain them The court granted the injunction on the ground that the use of the name 'Nigeria Chemists' was calculated to deceive persons who know of and intend to deal with 'Niger Chemists'; more so when the two firms trade in the same town, in the same street and are in the same line of business.It should be noted that the same consequence may be occasioned even if the defendants merely garnishes the plaintiffs name.
Short's Ltd. V. Short the plaintiffs, a firm of wine merchants obtained an injunction against the defendant who set up a similar business and styled it "short's".
Ogundele v. Babayemi the plaintiffs carried on business as building and civil engineering contractors and plumbers under the name "Mercury Builders (Nigeria) Ltd." In an action for passing off, they were granted an injunction restraining the defendants from conducting a similar business under the name "Mercury Builders (Nigeria) Ltd." |
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Passing Off |
Lagos Chamber of Commerce v. Registrar of Companies that the word "Lagos" is not similar to "Africa" as to be likely to deceive and as such the non registration of Lagos Chamber of Commerce because of the existence of another company with the name African Chamber of commerce was unreasonable since chamber of commerce is a generic expression that can be adopted by any organization, provided that there is a distinguishing mark to make it different from other associations.
It seems that the law only protects, in this regard, registered business names, partnerships and companies.Where the plaintiff's claim is based on similarity of name, he must show that the name used actually connotes goods manufactured by him and not merely descriptive of those goods.
For this purpose, the law maintains a distinction between "fanciful" and "descriptive" names, the latter being those names which merely indicate the nature and/or characteristics of the goods sold and not the goods or merchandise of any person.
Readway v. Banham If the trade name in contention falls within the latter category, then the law will ordinarily not protect it unless the plaintiff can prove, and the burden of proof is a heavy one-that the descriptive name in question has acquired a secondary meaning so exclusively associated with the plaintiff's own product that its use by the defendant is calculated to deceive purchasers.
Descriptive names which have been judicially tested include "vacuum cleaner" British Vacuum Cleaner Ltd. V. New Vacuum Co. Ltd.
"stout" Ragget v. Findlater
"cellular textiles" Cellular Clothing v. Maxton
"gripe water," Re Woodwards Trade Mark
"shredded wheat." Canadian Shredded Wheat co. v. Kelogg of Canada Ltd.
Vacum Cleaner Co. Ltd. V. New Vacum Cleaner Co. Ltd. it was held that "Vacuum" cleaner mean simply a cleaner working by suction and not necessarily one manufactured by the defendant. In refusing to grant the order of injunction sought, Parker, J. said inter alia:I do not consider myself that if a company chose to put into its own name words descriptive of the articles in which it deals in can fairly claim monopoly of the use of those words in trade names. It seems to me that it runs the risk of having articles similarly described in the trade names of rival traders.
The dictum is to the effect that, ordinarily, descriptive words are not subject of legal protection. However, it is possible for descriptive words to become distinctively associated with the plaintiff's goods by long and continuous usage.
Readway v. Banham it was held that "camel hair belting" which originally signified nothing more than belting made of camel hair had come to signify belting made by the plaintiff. Lord Herschell stated the principle as follows:I demur to the view that the defendants in this case were telling the simple truth when they sold their belting as camel hair belting, I think the fallacy lies in overlooking the fact that a word may acquire in a trade a secondary signification differing from its primary one, and that if it is used to persons in the trade who will understand it in its secondary sense, it will nonetheless be a falsehood than in its primary sense it may be true... in this case, the jury have found and in my opinion there was ample evidence to justify it that the words "camel hair" had in the trade acquired a secondary signification in connection with belting; that they did not convey to persons dealing in belting the idea that it was made of camel's hair, but that it was belting manufactured by the plaintiffs. On authority as well as on principle, I think the plaintiffs are on these facts entitled to relief.
The dictum recognizes exceptional situation where descriptive words would be protected and that is, when it had acquired secondary signification in the trade.
Lazenby v. White However, it must be noted that even if the words have become so distinctively attached to the plaintiff's goods, an action for passing off may not lie if they have become of universal use as to be regarded as public juris (public right).
Trebor Nig. Ltd. V. Associated Industries Ltd. The defendants raised this defence." (hereinafter called the "Trebor's" case) contending that the word "Trebor" was then being used descriptively in Nigeria to simply mean "peppermints".
Kerly stated the proper approach to this question of public juris as follows: The proper test whether an exclusive right has become public juris is whether the use of the trade mark or name has ceased to deceive the public as to the maker of the article.This seems to imply that it requires use by other persons of a trade mark or trade name before it can become public juris. Thus, where the plaintiff enjoys a virtual monopoly in respect thereof it can hardly be said to have become public juris. In the case in question, the court found that the effect of the defendant's action was that "Trebor" became known as the peppermint product; and, the defendant quite rightly did not claim that they could with impunity call their product "Trebor". If the name was public juris, they could do just that. The court, however, concluded that the name "Trebor" was not public juris."
4. Imitation of Get-up or Appearance A product's get-up is its general appearance. It includes the size, shape, the colour or decoration and packaging.
Salmond and Heuston states that: Where there is anything so characteristic in the get-up or appearance of the plaintiff's goods that it identifies those goods as the merchandise of the plaintiff, any deceptive adoption or imitation of that get-up or appearance is subject to the same rules as the deceptive imitation or adoption of his trade name or trade mark.
White Hudson & Co. Ltd. V. Asian Organization Ltd. where the plaintiff's medicated cough sweets had been sold in Singapore since 1953 in red cellophane papers bearing the words "Hacks". In 1958, the defendants began selling their cough sweets in similar wrappers bearing the word "Pecto". It was proved that the majority of the purchasers in Singapore were unable to read in English and that many of them had, by 1958, acquired the habit of asking for "red pepper cough sweet". It was also proved that prior to 1953, no cough sweet had been sold in red cellophane wrappers and between 1953 and 1958 only the plaintiffs' had been so sold. The court held that the plaintiffs were entitled to an injunction to "Pecto" wrapper without clearly distinguishing them from the plaintiffs'.
The significance of this decision, it is submitted, is that in a passing off action based on imitation of the get-up or appearance of the plaintiff's goods, the mere fact that the defendant uses a different name is no excuse, as long as there is a risk of confusion.
U.K. Tobacco Co. Ltd. V. Carreras Ltd. the defendants marketed cigarettes "Barrister" in packets on which appeared a white man in a barrister's wig and gown. This was held to be actionable imitation of the get-up of the plaintiff's cigarettes called "Bandmaster" with a similar picture or photograph.
De Facto Works Ltd. V. Odumotun the plaintiffs therein had been manufacturing and selling bread in brown and yellow paper with the name "De Facto" written in large chocolate-coloured scroll letters. Later, the defendants started selling bread in wrappers bearing yellow and brown colours and closely resembling the plaintiffs but with the name "Odus" written in large scroll letters, whereupon the plaintiffs brought an action for passing off. The court held the defendants liable and granted the order of injunction sought by the plaintiffs.
It has been contended that an important limitation to this head is that an action will not lie where the appearance is purely functional, that is, purely necessary for the better performance of the defendants good or for the greater efficiency in handling and processing them.
Thus, it is argued that the courts are reluctant to accept as get-up anything which has a utility value for the manufacturers.
J.B Wiliams Co. v. H. Brommley Co. where Flectcher Moulton L.J. said, in an interjection during counsel's address that:Every man has right to use that which is most useful... it is only when the thing used is capacious that there can be any suggestion of passing off. In his judgement in the case, his Lordship further stated thus: The get-up of an article means a capricious addition to the articles itself; the colour, or shape it may be, of the wrapper, or anything of that kind, but I strongly object to look at anything that has a value in use, as part of the get-up of the article.The import of the above dictum is that courts are usually reluctant to accept as get-up anything, which has utility value for the manufacturers, as was in this case. Thus, it was held in the case that the defendant-manufacturers of shaving sticks could not be prevented from marketing a standard type of the container, which was dictated primarily by functional considerations.
Trebor Nig. Ltd. V. Associated Industries Ltd. it was held that the use of functional packaging having a "capricious" design, shape or size closely resembling the product of the plaintiff did not constitute passing off.
While it is in the interest of commerce that every trader should be entitled to use that which is most useful; but certainly, not one in the same size and shape already distinctively associated with another trader's goods.
House of Lord's decision in William Edge & Sons Ltd. V. Williams Nichols & Sons Ltd. where a feature of the plaintiffs product (laundry blue) was a stick which had a utility value; the court nonetheless granted an injunction to restrain the defendants from using the same design of stick with a similar size and shape.
This case was cited with approval in the Trebor's case where the defendants established that certain number of the features of their packaging which are common with that of the plaintiff are functional and ipso facto should not be considered as get-up; but the plaintiffs objection was not that the defendants had used these utility items but that they used it in exactly the same size and shapes as used by them. The court, in upholding the plaintiff's objection observed that:The strictly utility aspects of the packaging can be distinguished from those aspects such as design and size which are a matter of "capricious" design, even if they relate to the items which are matters of utility.
However, what the court does is to examine the totality of impression of the get-up or appearance of the goods. Where the bowhole is not likely to deceive, obvious similarities will not mestablish the plaintiff's case.
Schweppes Ltd. V. Gibbens House of Lords where Lindley 103 L.J.., expressing the unanimous view, stated that: the resemblance here are obvious enough but Vi unfortunately for the appellants, so are the differences. The differences are not concealed; they are quite as conspicuous as the resemblance. If you look at the whole get-up, and not only at that part of it in which the resemblance are to be found, the whole get-up does not deceive".
5. False Advertising in Connection with the Plaintiff's Business
Leather Cloth Co. Ltd. V American Leather Cloth Co. An injunction may be granted to prevent an individual from falsely representing that he is the agent of some particular firm. This will however not prevent him from truthfully advertising that once he was with a particular person or firm, but he must not convey the impression that he is connected with or is a successor to, such a person or firm.
False advertising campaigns therefore constitute another act that could give rise to a successful passing-off action.
Newspapers Ltd. V. Publicity Services (London) Ltd. the defendants were an advertising agency who set up their advertisements as if it formed part of such periodicals as Tatler and Sphere. They then inserted the extra pages into copies later distributed to certain hotels. It was found as a fact that the practice would lead the public to believe that the insets were part of the original publication, would damage the plaintiffs by making the periodicals less attractive as advertising media and would expose the plaintiffs to the risk of litigation by their own advertisers. An injunction was therefore granted.
Similarity, an injunction may lie where the defendant imitates the plaintiffs catalogues and price list.
Masson, Seeley & Co. Ltd. V. Embosotype Manufacturing Co. the defendants, whose business was similar to that of the plaintiffs, circulated price lists which were practically copies of those of the plaintiffs, but sold goods inferior to those of the plaintiffs. It was held that the conduct of the defendants would induce people to believe that goods offered by them were the same as the plaintiffs' goods. The court therefore granted injunction restraining the defendants from furthering their act.
Plotzker v. Lucas However, it is not passing off merely to adopt a style of advertising similar to that used by a rival trader. Similar systems of window dressing or shop decoration are not actionable if used only to attract customers and not to divert customers from the plaintiffs shop.
Wertheimer v. Sewart the plaintiff advertised "Home seed" and the defendant advertised "Exhibition seeds". The complaint lay in the defendant's use of identical language and method of advertising. Kekewich, J. refused an action for injunction. The plaintiff had no property in the advertisement or any claim in copyright, no such claim being made. The defendant was not saying that his goods were those of the plaintiff, nor was he identifying himself with the plaintiff: he had put forward his own name as advertiser and as the person to whom orders were to be given.
Samuelson v. Producer's Distributing Co. Ltd. the author of a sketch sued to prevent a film version of the sketch being shown. It was proved in evidence that advertisements had been published stating that it was a film version of the original, and famous sketch. The Court of Appeal held this constituted passing-off.
6. Appropriation of Personality
Warnik V. Towned Per Lord Diolock The tort of passing of is now characterized as merely an instance of the much wider principle that court will restrain irreparable damage being done to property; or as to a particular species of wrong included in wider genus - the prevention of unfair trading.
Appropriation of personality takes account of one particular form of commercial practice, that is, the use without consent of the name, likeness or voice of another.
Sim V. Heinz. In an action for interlocutory injunction to restrain the appropriation of the plaintiff's voice, McNair, J., refused to rule as to whether an action in passing off lie: He thought that:It would seem to me to be a grave defect in the law if it were possible for a party, for the purpose of commercial gain, to make use of the voice of another party without his consent.
Estey, J.A. felt that he, too, could accept that "the common law does contemplate a concept in the law of torts which may be broadly classified as appropriation of one's personality."
Athens v. Canadian Adventure Camps Where the likeness of a famous water-skier was used, without his consent in a brochure for the defendants' camp. Damages were awarded for this "appropriation of personality".
However, the earliest reported cases of appropriation of personality hinged on the used of another's name.
Routh v. Webster where the defendant published the plaintiff's name as a trustee of a newly established company. The court granted an injunction to restrain the unconsented use on the ground that the use itself exposed the plaintiff to financial risk. In granting the injunction, Lord Langadale M.R. stated: Let it be a warning to the defendants as well as to others not to used the names of the other persons without their authority.
Following this decision, the principle is then laid that whenever the use of another's name exposes him to the risk of litigation, then that use will be restrained. However, unless the plaintiff can show that the defendant has something more than the use his name without authority, he cannot succeed in his claim for an injunction in the appropriation of personality.
Dockrell v. Dougall, Williams L.J. gave life to the principle. He accepted the notion that unauthorized use of another's name would be actionable if it led to injury to the plaintiff's right of the property, such rights would, he held, include: "the rights of a man with a profession or business whose pecuniary advantage may be interfered with by a wrongful user of his name". In failing to prove any infraction of his rights of property or injury to him, his property, business or profession, the plaintiff's case failed. However, he added a caveat to the effect that his judgement should not be taken to mean "that a man may safely advertise his quack medicine as being certified to be effectious by a professional man without his authority."
In conclusion, the passing off action extends to cover cases of appropriation of personality where the plaintiff has a "business" in his or her personality without any injury being done to the precedents.
Remedies for Passing-Off
Osborn's Concise Law Dictionary Remedies are "the means by which the violation of a right is prevented, redressed or compensated."
1. Injunction Halsbury Statutes of England an injunction is "a judgement or an order of the court requiring a party to restrain from doing or to do, a particular act or thing".
It is important to note that, in the absence of a threat to continue the act complained of, the courts may grant a declaration instead of injunction (though giving liberty to apply for an injunction, if the defendant does continue).
The remedy of injunction is an equitable remedy and was originally granted only by Court of Chancery and the Court of Exchequer in Equity. By virtue of the Judicature Act of 1873-5, that brought together the Courts of Chancery and the Common Law under one omnibus umbrella, called Supreme Court of Judicature, coupled with the Supreme Court of Judicature, (Consolidation) Act 1925, High Courts were empowered to grant any relief which could formerly have been given by court of equity. The Judicature Act is the only one applicable in Nigeria, being Statute of General Application.
An injunction ordering a party to do some act is called a mandatory injunction, while an order to a party to refrain from doing some acts is called a prohibitory injunction. Injunctions.
Injunctions may also be classified into perpetual and interim. A perpetual injunction is granted when the rights of the parties have been finally determined and it is intended permanently infringement of those rights, whereas the object of an interlocutory injunction is to preserve matters in status quo pending the determination of the rights of the parties.
Reddaway v. Bentham Hemp-Spinning Co. per Lopes L.J. laid down the principle in which injunction would be granted in an action for passing off, when he stated thus:If an article has acquired a distinctive meaning in the trade, connecting it with a particular person's manufacturer, another so advertises or describes or to create a probability of their believing that they are buying the goods of the former when, in fact, they are buying the goods of the latter, (and this, though there is no intention to deceive, and no special damage proved), a court of equity will grant relief by way of injunction.
In Pfizer Products' case, the court granted an injunction restraining the defendants from passing off by using a trade mark Texamycin" similar to the plaintiff's Terramycin".
Niger Chemist Ltd. V. Nigeria Chemists the court granted injunction, on the ground that the use of the name 'Nigeria Chemists' was calculated to deceive persons who know ofand intend to deal with 'Niger Chemist.'
Masson, Seeley & Co. Ltd. V. Embosotype Manufacturing Co. the defendants whose business was similar to that of the plaintiffs, circulated price lists which were practically copies of those of the plaintiffs, but sold goods inferior to those of the plaintiffs, were restrained by injunction from continuing the act.
Routh v. Webster where the defendants published the plaintiff's name as a trustee of a newly established company, the court granted an injunction to restrain the unconsented use, on the ground that the use itself, exposed the plaintiff to financial risk.
However, injunction being an equitable remedy, the maxim, he who comes to equity must come with clean hands applies. Therefore, where the plaintiff had consented to the passing off, he cannot turn round to seek for a remedy, since a person cannot probate and reprobate at the same time.
2. Damages Halsbury's Statutes of England: Damages are the pecuniary compensation which the law gives to a person in respect of injury arising from the infringement of a legal right or failure to fulfill a legal duty, whether such act or default is a breach of contract or a tort.
Munkman, J. damages are "simply a sum of money given as compensation for loss or harm of any kind."
Also, that damages are common law origin has been stated per Viscount in the case of Admiralty Comrs v. S.S. Susquehanna as thus:The common law says that the damages due either for breach of contract or tort are damages which, so far as money can compensate, will give the injured party reparation.
The principles governing the award of damages have in the main been worked out by courts and the purpose of awarding damages is to put the party whose rights have been violated, in the same position, so far as money can do, as if his rights had been observed. Damages are either special or general.
British Transport Commission v. Gourley Lord Goddard laid the principle as follows: In an action for personal injuries the damages are always divided into two main parts. First there is what is referred to as special damages, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and generally capable of substantially exact calculation. Secondly, there are general damages which the law implies and is not specifically pleaded. This includes compensation for pains and suffering and like, and if injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future.
Incar v. Benson Sowemimo, J.S.C affirmed and adopted the above dictum when he distinguished between general damages and special damages.
Leads Forge Ltd. V. Deighton's Patent Flue Company Swinfen Eddy J. put the matter as follows: In considering the question of the amount of damages, it must be borne in mind that the measure of damage is the loss which the plaintiff have actually sustained as the natural and direct consequence of the defendant's act...
It should be noted that the right to damages and the amount thereof are affected by statute in various ways and certain enactments have created or preserved a right to damages or have varied the common law rules governing the same.
Sale of Goods Act, 1893, S. 51 prescribes the measures of damages on non-delivery by seller to the buyer. In tort, damages are recoverable for those consequences of a wrongful act, which the court holds, are reasonably foreseeable. The principle applicable therefore, in tort, is that the plaintiff is entitled to compensation for the pecuniary loss he has sustained by the wrongful act of the defendant.
Khawam v. Chellaram Ademola, C.J.F affirmed this principle when he observed:...What has to be ascertained is the pecuniary loss the plaintiff has sustained by the wrongful acts done to him by the defendants: the plaintiff is entitled to be compensated for the injuries he has suffered by reason of the wrongful act of the defendants.
Mobil v. Johnson Ademola, C.J.F, confirmed the principle which says that a party claiming special damages in a civil action based on the tortious act of another, must strictly prove, when he stated thus: Undoubtedly, the rule that special damages must be strictly proved applies to cases in tort.
Spalding (A.G.) & Bros v. GaMage Aktiebolaget v. Bland Ltd In passing off, the plaintiff recovers damages for the loss of profits which he has sustained in consequence of customers, being diverted from him to the defendant; in addition, he may recover for loss of business reputation and good will.
Reddaway v. Bentham it is sufficient to prove that the practice complained of is of such a nature that it is likely, in the ordinary course of business, to deceive the public.
Society of Motor Traders v. Motor Manuf. Insurance In the cases of fraud, the onus of providing likelihood of damages is not heavy: the court will readily assume that the defendant will succeed in accomplishing that which he has set himself to accomplish, but where there is no fraud; the onus is a very heavy one.
Drapper v. Trist Indeed, it may be that nothing more than nominal damages, will be given for an innocent passing off.
Beecham Group Ltd. V. Essdee Food Products Nigeria Ltd. the court granted inter alia, a five thousand naira (N5,000) damages to the plaintiff, on the ground that the defendants had passed off the goods of the plaintiff by infringing on their trademark.
Pfizer's case, the Lagos High court awarded a two million naira (N2,000,000) damages to be paid to Pfizer Products Limited by the defendants for passing-off by using a trade mark "Texamycin" similar to the plaintiffs "Terramycin."However, it should be noted that damages from the same cause of action must be recovered once and for all, since equitable doctrine of estoppel frowns at multiplicity of actions.
Ejiofodomi v. Okonkwo Moreover, it is against public policy that there should be multiplicity of actions arising from the same fact or transaction.
Per Reid in British Transport's Case damages must be assessed as a lump sum once and for all, not only in respect of loss accrued before the trial but also in respect of prospective loss.
3. Delivery-up Dent v. Turpin The court in its equitable jurisdiction may in addition, to ordering an injunction; order the delivery-up of all goods bearing the offending trade mark or trade name for the purpose of erasing such marks or names.
Farina v. Silver where the problem of erasure arises, the court may order for the destruction of the goods in question.
Slazenger v. Feltham the defendants were ordered to either deliver up all their tennis racquets bearing the offending trade mark to the plaintiff for destruction or in the alternative erase the mark.
The court may also order for delivery-up or destroying, upon oath, all articles in the defendant's possession, custody or control.
In Pfizer's case, the court ordered the defendant to deliver or destroy, upon oath, all articles in their possession, custody or control which use will be a breach of the injunction granted.
4. Account of Profits
Colburn v. Simms Per Wigram, V-C The alternative to the common law inquiry into damages is the equitable remedy of an account of the profits, actually made by the defendants in consequence of passing off. By an account, it is meant as "the nearest approximation which it can make to justice, takes from the wrongdoer all the profits he has made...and then gives them to the party who has been wronged".
Halsbury's law, 3rd edn. An account of profit is an equitable money remedy by which the plaintiff recovers whatever profits were actually made by the defendant.
It is noteworthy that the defendant is liable for only the profits, which he makes after acquiring knowledge of his offending act. Otherwise, the law does not deem it equitable to ask him to account for profits made while he was acting innocently or in total ignorance of the existence of the plaintiff's right. For instance, a person who by an honest use of his own name in trade, causes confusion to the members of public with regard to the ownership or source of the goods can only be liable for an injunction or damages but not an account of profits.
Lever v. Godwin the defendants, who were soap manufacturers, brought out their soap in packets so closely resembling those in which the plaintiffs, who were also soap manufacturers, had been in the habit of bringing out their soap, as to be calculated to deceive purchasers. Chitty, J., held inter alia, that although the retail dealers who bought soap from the defendants would not be deceived, the defendant, by their imitation of the plaintiffs' packets, put into the hands of the retail dealers an instrument of fraud. An account was directed of the profits made by the defendants in selling soap in the form in which it was held that they were not entitled to sell it. |
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Vicarious Liability |
The Control Test
Yewens v. Noakes Branbwell B.L.J. propounded this test, where he stated that: A servant is a person who is subject to the control of his master as to the manner in which he shall do his work.
Thus the principles underlying the control test is the "What, When" and "how".
Francis Dola v. Cecillia John In that case, the appellant was a licensed goldsmith who carried on his business with one Raimi, his journeyman. The respondent, a customer of the appellant gave some gold ornaments to Raimi to deliver to the appellant for cleaning, but Raimi absconded with them. The appellant had on previous occasions sent Raimi to the respondent for collection of her ornaments and this time the respondent delivered the ornaments to Raimi, on the latter representation that it was the appellant who sent him. It was contended by the appellant that Raimi was not servant but an independent contractor in the absence of control by the appellant as to the manner he is to do work, and that even if he is a servant, he acted outside the scope of his employment. It was held that, a servant is any person employed by another to do work in terms that he, the servant is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done and that the relationship of a journeyman to his employer has well been established in law that the former is the servant of the latter, for the reason, the plaintiff need not prove that a licensed goldsmith has control over the mode his journeyman does his work for this is implied. The court further stated that by his previous conduct of authorizing Raimi to receive work from the respondent, the appellant held out to the respondent that Raimi had his authority to receive on behalf of the appellant, the materials in question and therefore is vicariously liable for Raimi's fraud.
The court's reasoning was founded on the established principle that if an agent purporting to act in the course of business, and he was authorized or held out as authorized to transact on account of his principal, then the latter may be held liable for it.
Atedoghu v. Sanni Alade the plaintiff brought an action under the Fatal Accidents Act for damages in respect of the death of his wife resulting from the negligent driving of inter alia that at common law, the owner of the taxi cab is not liable for the torts committed by the driver. It was held that upon the terms of the employment of the defendant's driver, which established the relationship of master and servant, the common law doctrine did not apply and the defendant is liable for the driver's negligence.
It has been generally suggested that he who has the power to hire and fire is the person in control.
However, there are instances where a person who have such powers is himself an employee. The Vice- chancellor of a University, for example, is an employee. But he also have the power to discipline the entire University staff; so also does an executive director of a company who works under a contract is himself a servant even though he equally have the power of hire and fire.
Lee v. Lee Air Farming Limited the Managing Director and the major shareholder in a company was held to be an employer.
The Multiple Tests The multiple test was formulated by Lord Thankerton in
Short v. Henderson where he laid down four indices for determining relationship as follows: a) The master's right to control the method of doing work. b) The right to fix the wages payable. c) The power of selection, and d) The employer's power of discipline
Mooren Swinton v. Pendenbury Bournough Council where a resident site engineer was appointed and paid by the local authority, but he was selected and worked under the instructions of a firm of consultant engineers. The question in issue was whether for purpose of Local Government Superanuation, the engineer was an employee of the council. The court applied the four indices and held that although he was not under the direct control of the council, the engineer was nevertheless a servant of the council.
Market Investigations v. Minister of Social Security a company selected persons to act as interviewers and the court had to determine whether they were employed persons. It was held that they were employees because a consideration of all the factors of the contract revealed that it was consistent with contract of employment. Ready Mixed Concrete Ltd v. Ministry of Pensions and National Insurance
The Organization Test
This tends to emphasize the legal status of a worker in relation to the role he plays in an organizational set up.
Stevenson, Jordan and Harrison Ltd v. Macdonald and Evans The test was the brainchild of Lord Denning where he took the view whether a person is a servant or not depends on whether the work is done as an integral part of the business. What is emphasized is the degree of integration of the individual into the organization. The test, therefore, brings workers such as hospital staff, consultants and other professional staff into the ambit of employees, but others whose duty are merely ancillary to the organization's work are not. This would not have been so if the formalistic test of control is adopted.
Cassidy v. Ministry of Health a patient was deprived of the use of his hand due to the negligence of a full-time medical staff of the hospital. He claimed against the hospital Board to whom the defendants were responsible. It was held that full-time staff of the hospital were employees of the Board, because their work was carried on as an integral part of the organization and that they are liable in this case not because they can control the way in which the work is done since they often do not have sufficient knowledge to do so, but because they employ the staff and have chosen them for the task and have in their hands the ultimate sanctions of good conduct - the power of dismissal.
Igbokwe v. University College Hospital Management Board A hospital was held liable for the negligence of a nurse taking care of a patient and who failed to take due care in guarding her thereby causing her death. The organizational test has been given a cautious approval and has been seen as a restatement rather than a solution to the problem.
Lending a Servant
Mersey Docks and Harbour Board v. Coggins & Griffiths The appellants hired out to the respondents, who were master stevedores, the use of their mobile crane and its driver. The contract of hire stipulated that the driver should be the servant of the respondents but that the appellants should be responsible for his wages and also have power of dismissing him. In the course of loading a ship, a stevedore was injured as a result of the driver's negligent handling of the crane. At the time of the accident the respondents had immediate and direct control of the operations. The House of Lords held that the appellants as the general or permanent employer of the driver was vicariously liable for the driver's negligence as they have not discharged the burden of proving that the driver was no longer their servant or employee.
Authur White v. Tarmac Civil Engineering Ltd. The courts have not always been willing to accept that an employee has been transferred from one person to another except there is some evidence of his consent.
Garrad v. Southey & Co. & Standard Telephones and Cables Ltd In cases of purported transfer the burden is usually on the permanent or general employer to disprove liability as to shift the prima facie responsibility for the act of the employee to the temporary employer. Sometimes, however, the temporary employer may be liable and the question of responsibility depends on the circumstances of each particular case.
Tort committed by servant
Afribank Plc v. Shanu & 1 Or. the Court of Appeal stated the law as follows:"The liability of a master is wholly dependent on that of the servant. Unless the servant is liable, the master cannot be liable. However where the servant is liable he does not appeal, there is no way the master can successfully appeal against the judgment of the trial court.
Audu v. Alabo The same court stated that the vicarious liability of a master will not arise unless and until the servant has been found liable. Ohi v. Bi-Water Shella bear (Nig.) Ltd
While it is required that for the master to be liable, the servant must be liable, it is not the law that the tortfeasor i.e. the servant in this case, should be joined as a co-defendant.
Ifeanyi-Chukwu Osondu Co. Ltd v. Soleh Boneh (Nig.) Ltd. the Supreme Court opined that:...the law as I have always known it to be is that a master may be properly sued without joining the servant and may be adjudged liable for the wrongful act or the tort of his servant so long as it is committed in the course of the servant's employment but he cannot be liable for the wrongful act or tort which is committed outside the scope of such employment.
The rationale for the rule appears to be that a master is always treated as a joint tortfeasor with the servant for whom he is vicariously liable. Being joint tortfeasors a plaintiff is at liberty to chose his victim; he may decide to sue either of the master and servant separately or both of them jointly.
Osondu v. Soleh Boneh Limited Iguh, JSC captured the position of the law in the following words:"It is beyond dispute that an agent who commits a tort on behalf of or on the instruction of his principal is along with the said principal joint tortfeasors in law. The same is true where a servant commits a tort in the course of his employment. He and his master are in law equally joint tortfeasors, as the law, in appropriate cases, imputes the commission of the same tort or wrongful act to both of them jointly."
Course of Employment
a) Manner of doing work for which the servant was employed An employer is liable for the torts of his servant if the act was an authorized one though done in an unauthorized manner. What thus emerges is that emphasis is laid on the scope of authority of the employee and not on the mode, which he adopts in trying to perform his duties.
Century Insurance Co. V. Northern Ireland Transport Board the driver of a petrol tanker while transferring petrol from the vehicle to an underground tank at a filing station struck a match to light a cigarette. He threw the burning match on the ground. This led to fire, which destroyed the filling station. The plaintiff sued the owner of the vehicle for the driver's negligence. The insurance company contested the claim. The court held the vehicle owner as employer of the driver liable since the act was merely an unauthorized way of doing what he was employed to do.
Course of Employment
a) Manner of doing work for which the servant was employed An employer is liable for the torts of his servant if the act was an authorized one though done in an unauthorized manner. What thus emerges is that emphasis is laid on the scope of authority of the employee and not on the mode, which he adopts in trying to perform his duties.
Century Insurance Co. V. Northern Ireland Transport Board The driver of a petrol tanker while transferring petrol from the vehicle to an underground tank at a filing station struck a match to light a cigarette. He threw the burning match on the ground. This led to fire, which destroyed the filling station. The plaintiff sued the owner of the vehicle for the driver's negligence. The insurance company contested the claim. The court held the vehicle owner as employer of the driver liable since the act was merely an unauthorized way of doing what he was employed to do.
Popoola v. Pan African Gas Distributors Ltd Two of the three people were the servants of the defendants. In the course of unloading gas in the premises of the plaintiff to whom they were delivering gas cylinders, the third person lit a cigarette, an explosion and fire ensued which destroyed the plaintiff's house. The court held the defendants liable for the negligence of their servants as he committed the act in the course of his employment, notwithstanding the wrong manner in which they carried out their duty.
Williams v. Jones the employee of the defendant negligently dropped a wood shaving with which he had been lighting a pipe. It was held that the defendants were not liable.
However, in Beard v. London General Omnibus the employer of a bus conductor was held not liable for the act of the conductor in turning a bus around a terminus and in so doing negligently injured the plaintiff. Accordingly to the court, the conductor acted outside the scope of his authority, ostensible or actual because he was employed to collect fares and not to drive the bus.
Iko v. John Holt & Co. Ltd. It is an established principle of law that a master is liable for the torts of his servant committed within the scope of the servant's employment whether they are for the benefit of the master or of the servant.
The test for determining whether the wrongful act of the servant is in the course of his employment.
NBN Ltd v. TASA Ltd. it was stated by the Court of Appeal as follows: "That a wrongful act of a servant is within the ambit of a servant's employment is a matter that is a question of fact. The test that is often adopted is that a servant's wrongful act is deemed to be in the course of his employment if it is either- a) a wrongful and unauthorized by the master. b) A wrongful and unauthorized mode of doing some act authorized by the master." Mutual Aids Society Ltd. v. Akerede
b) Authorized Limits of Time and Place Where the servant commits a tort during working hours or a reasonable time before or after, there is the likelihood that the employer will be liable.
Ruddiman & Co v. Smith the employers of a clerk were held liable for the flooding of the plaintiff's premises where he (the clerk) had about ten minutes after working hours turned on the tap in the bathroom and forgot turning it off before going home.
With regard to place, the issue has always been whether the servant is within the course of his employment, where he commits a tort after deviation from an authorized route.
Joel v. Morrison, Parke B laid down the general test where he stated as follows:If he was going out of his way, against his master's implied commands when driving on his master's business, he will make his master liable, but if he was going on a frolic of his own without being at all on his master's business, the master will not be held liable.
Whether a deviation by a servant amounts to a frolic is a question of fact dependent upon the degree, extent and purpose of the deviation. Where the detour is substantial and solely for the servant's purpose, the master cannot answer for any wrong done in that situation.
Whatman v. Person the servant had without permission gone to his house for his mid-day meal against express prohibition by his employers; with a horse and car for which he was solely responsible. As a result of his negligence in allowing the horse unattended outside his house, it ran away and injured the plaintiff. Evidence showed that the servant only deviated a quarter of mile from his normal and authorized route. The master was held liable because the deviation was not substantial and the purpose therefore, i.e. to obtain refreshment was reasonably incidental to his employment. It has also been held that even where the servant, a driver deviated from his authorized route to procure food, in the absence of evidence as to the extent of the deviation, the servant would be taken to be acting within the scope of his employment and could not be said to be on a frolic. Menair J has stated that it was fairly incidental to their work for employees to get a meal during working hours and a journey for that purpose is taken to have been impliedly authorised."
But in another case Lord Diplock held that it was not within the course of employment of a group of workmen to travel as far as seven or eight miles from their site for tea, where there was evidence that they just had their and lunch in a public house.
Where the purpose of the detour of the servant was for his own private business and the deviation is substantial the master cannot be liable.
Storey v. Ashton the driver on his return journey from an authorized job of delivering wine to a customer deviated from his route in order to attend to a friends business. The detour was after business hours and while the driver was just a quarter of a mile from the defendant's premises he ran down the plaintiff due to his negligent driving; the master was held not liable.
Jaffa v. Elias it was held that where a driver on returning from a store for his master deviated from the normal route back to his master's premises in the hope of meeting a friend at another store his master not having specified what route he should take the court did not err in al finding him within the scope of his employment, the burden of proving the contrary not having been established by the defense.
This case seems irreconcilable with the former case, but the obvious reason for the decision of the court in the latter was that the master did not discharge the burden of proving that there was a detour, nor was it established what route would be taken by the servant in course of his duties. In the former case, the route was clearly demarcated and the accident happened outside business hours.
Shobo v. Aliemo it was stated that where there is evidence that a servant was on his master's business, the onus is on the master to prove that at the time of the accident, the servant was on a frolic of his own.
Furthermore, the rule is that when an employee of another drives the vehicle of his employer on the highway he is presumed to be driving that vehicle in the course of his employment and the employer will be vicariously liable for the negligent driving leading to injury to a person.
Eseigbe v. Agholor Oguegbu JSC (as he then was) stated as follows: In law, ownership of a vehicle cannot of itself impose liability on the owner. The owner without further information, as in this case is, however, prima facie liable because the Court is entitled to draw the inference that the vehicle was being driven by the owner, his servant or agent.
c) Express Prohibition The position of the law is that an act of a servant which results in damage to a third party, may still be within the scope of his employment even if it is expressly prohibited. Two classes of prohibited must be distinguished: i) Prohibition limiting the sphere of scope of employment; ii) Prohibitions which merely deal with conduct within the sphere of employment.
Lumpus v. London General Omnibus Co the driver of the defendant company was instructed not to race with or obstruct other omnibuses. In disobedience to the order he obstructed the plaintiff's omnibus and caused a collision, which damaged it. In holding the employers of the driver liable, the court observed that the prohibition did not limit the scope of the driver's duty or employment but was merely an attempt to control his conduct within the scope of his employment and that his act was merely an unauthorized manner of doing what he was engaged to do.
Rose v. Plenty The position seem to be that where the unauthorized passenger is injured, the master cannot be liable, but where a third party other than the unauthorized passenger is injured, the employers will be liable because the tort would have been committed during the course of the business of the master. In this regard, in considering whether a prohibited act was within the course of servant's employment, depends very much on the purpose from which it is done. If it is done for some purpose other than his master's business such an act if prohibited may be within the course of his employment."
Twine v. Beans Express Ltd the defendants had put up a notice on the signpost of their company to the effect that their drivers were not allowed to give lifts to any unauthorized person. The plaintiff's husband wanted a lift, but was reminded by the driver of the prohibition. The plaintiff's husband persuaded the driver to give him lift at his own risk despite incessant refusal by the driver. Consequently the driver accepted and in course of the journey an accident occurred ucas a result of the driver's negligence and the plaintiff's husband died. The widow brought an action against the employers of the driver, but the court held them not liable because the driver was not acting in course of his employment when he gave the lift to the deceased person.
Jarkamani Transport Ltd v. Abeke the servant of the defendant who was the driver of their goods lorry had express instruction against taking passengers on board. He violated the order and took passengers, one of whom was the plaintiff. As a result of the driver's negligence, the lorry collided with a stationery vehicle resulting in an injury to the plaintiff. In an action against the employers, they contended that the driver was acting outside the scope of his employment in view of the express prohibition not to carry passengers and that the plaintiff should have been aware of this since the lorry was not build to take passengers and the words "PASSENGERS NOT ALLOWED" printed boldly on both sides of the lorry was enough notice. The trial court held the master liable on the ground that the driver did the act in course of doing what he is employed to do irrespective of whether he was disobeying express orders or not. On appeal to the Supreme Court, it was held, reversing the trial courts decision, that the driver at that material time was not acting within the scope of his employment when he gave the lift to unauthorized persons and as such the employers cannot be liable.
d) Employer's Business
Bayley v. Manchester Shefield and Lincolnshire Rly the plaintiff whose destination was Maclesfield boarded the right train, but a porter in the employment of the defendant thinking he was in the wrong train mistakenly pulled him out of the moving train consequent upon which he sustained injuries. For the act of porter the defendants were held liable.
Poland v. Parr & Sons Ltd A caterer employed by the defendants struck a blow and injured a boy whom he thought was stealing sugar from his employer's passing wagon. In an action for damages for his injured foot, the master was held liable because the blow was given for purpose of protecting the master's property.
Gyer v. Monday it was stated that where a manager, who in the course of his duties in the business, goes to recover furniture, that he commits an assault, that is a tortious mode of doing the class of act which he is authorized to do, as such the employers are liable.
Wareen v. Henley's Ltd Beaument, a petrol attendant, in course of his duties erroneously accused the plaintiff in a violent language, of trying to drive away without paying for the petrol already in the tank of his car. The plaintiff paid the bill and called the police, he also threatened to report the attendant to his employers; consequent upon which the attendant assaulted and injured the plaintiff. The plaintiff brought this action for damages against the attendant's employers. In holding them not liable, it was held that the attendant's act was one so connected with the class of acts he was employed to do as to be a mode of doing some act within that act but that his act was one of personal vengeance and thus it was not done in relation to his personal matter, affecting his personal interests and there is no evidence that it was otherwise.
Keppel Bus Co. Ltd v. Sa'ad Bin Ahmed the employers of a bus conductor were held not liable for the assault by one of their bus conductor on a passenger who objected to the conductor's use of abusive language to himself and an elderly lady because as the court stated, insults to passengers was not part of the conductor's duty, more so as there was no evidence of disorderly conduct among the passengers to have warranted a forcible action.Kay v. Itw Ltd
Improper Delegation Iku v. Samuel a lorry driver in the employment of the defendants permitted, against express instructions, a stranger to drive his lorry as a result of which an accident occurred due to the stranger's negligent driving. The defendant were held liable for the negligence of their driver in allowing the stranger to drive, a job that he was employed to do.
General Metalware Co. Ltd v. Lagos City Council the driver who had been given express instructions not to allow unauthorized persons to drive by the defendants who were his employers, allowed a timekeeper also in the employment of the council to drive the bus consequent upon which the plaintiffs property was damaged. The defendants were held liable for the act of the driver but not for the act of the timekeeper himself who was clearly outside the scope of his authority.
From the foregoing it is deducible that for the liability of the master to ensue, there must have been a delegation of the duty for which the servant was employed to do to an unqualified third party and such delegation must be by the servant himself.
Dawodu v. Agbonaho the master of a driver was held not liable because there was no delegation to an unqualified third party by the driver since the third party himself against express instructions took it upon himself to move the lorry.
Theft, Fraud and Misrepresentation by a Servant
Lloyd v. Grace Smith & Co. where it was held that a master was liable for the dishonesty of fraud of his servant if it was done within the course of his employment, no matter whether it was done for the benefit of the master or for the benefit of the servant. In that case, the defendants were a firm of solicitors. Their managing clerk acting within the scope of his apparent authority from his employers accepted Mrs. Lloyd's title deeds in order to sell her cottages on her behalf and to call in a mortgage. In accepting her instructions, the clerk actually intended to misappropriate the deeds which he actually did. The employers were held liable because the clerk was acting within the scope of his employment, having held him out as capable of receiving it in their behalf, are thus, liable. Unoridge Permanent Building Society v. Pickard
In case of theft by a servant, the old view was that the master cannot be liable. However, this fails to take cognizance of the fact that the theft by the servant of goods entrusted to him is the dishonest performance by him of what he was employed to do. It is now accepted that for the theft of goods entrusted to the servant, which belong to a third party, the master will be liable in Morris v. C.W. Martin and Sons Ltd.
Fairline Shipping Corpn v. Adamson The plaintiff sent her coat to be cleaned by 'A', who with her permission, sent it to the defendants who were specialists dry- cleaners. The defendants handed the coat to B., one of their servants to clean, but he stole it. The defendants were held liable as bailees for reward. It should be noted that the dishonest employee can also be liable for the tort of conversion.
United African Company Ltd v. Saka Owoade the defendant was a transport contractor who wanted to do business with the plaintiff. He introduced two persons as his driver and clerk respectively, and stated that whenever the plaintiffs have goods to deliver to third parties, it should be given to them for onward delivery. The plaintiff relying on the defendant's representation, later gave the two gentlemen goods to deliver in one of the plaintiff's branches in the Northern part of Nigeria; but the goods never got there. The purported driver and clerk were convicted of stealing the goods and the plaintiff brought an action against the defendant, claiming that he was liable for the conversion of the goods by his servants. The Privy Council in upholding the judgment of the trial court and reversing that of the West African Court of Appeal, held the defendant liable because the act of conversion of the goods was committed in the course of the servant's employment irrespective of whether it was for the master's benefit or not, more so as the defendant has held them out as capable of transacting business on his behalf. G.B Olivant v. Arab it was held that where the defendant's employees in the course of their employment as drivers of the defendant's lorries stole the plaintiff's goods, which they were transporting, the defendant was held liable for the loss. |
