The Functions of The Law of Torts in Africa

The Functions of the Law of Torts in Africa
Author(s): Jill Cottrell

Source: Journal of African Law , Spring, 1987, Vol. 31, No. 1/2, Essays in Honour of A.
N. Allott (Spring, 1987), pp. 161-184
Published by: School of Oriental and African Studies
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THE FUNCTIONS OF THE LAW OF TORTS IN
AFRICA
JILL COTTRELL*
INTRODUCTION
Professor Allott observed nearly a quarter of century ago:

"There can be nojustification (other than inertia) for the continued application
of the unreformed English law of torts in modern African countries".
There is no doubt that he was right; there is equally no doubt that it is
still substantially the unreformed law which is applied. Certainly there has
been very little in the way of legislative change. This paper is not concerned
mainly with this question, but with what uses African litigants and their
lawyers have found for this exotic field of law, and also, to some extent, with
the further question of how far the law has proved fitted for the tasks.
A glance at legal periodicals in the United Kingdom and even more so in
the USA indicates that there is something of a ferment in tort scholarship.
We find writers asking questions like "Does tort have a future?" While at
the same time others demand that tort take on new roles.2 By way of complete
contrast, it might appear from African legal literature that the law of tort is
of virtually no significance. There are very few books3 and journal articles
are relatively rare. It attracts even less attention from those who write on
law and development.
It has been said of the Antipodean law of tort that it "does not, in general,
reflect the Australian outback and its pastoral economy, nor New Zealand's
earthquakes, volcanoes and glaciers, nor exemplify an Australian or New
Zealand ethos".4 Is the situation in Africa any different? Is the law of tort
redolent of the Rift Valley or the Savanna? Do the cases show an African
ethos?5
* Senior Lecturer in Law, University of Warwick.

"The Codification of the Law of Civil Wrongs in Common Law African Countries" in
University of Ife, Integration of Customary and Modem Legal Systems in Africa (Ile-Ife, 1971), 170,
174.
2 See e.g. J. Fleming, "Is There a Future for Tort?" (1984) 58 ALJ 131, and Alexander,
"Causation and Corrective Justice: Does Tort Law Make Sense?" (1987) 6 Law and Philosophy
1, who concludes (p. 23), "We should abolish the tort system". This agonising is most acute
in the United States, see P. S. Atiyah, "American Tort Law in Crisis" (1987) Ox. JLS 279.
The literature on the inadequacies of tort as a compensation system is, of course, enormous;
see, for example, P. S. Atiyah, Accidents, Compensation and the Law, 4th ed., London, 1987, T.
Ison, The Forensic Lottery, London, 1967, and for a less radical attack, the Report of the Royal
Commission on Civil Liability and Compensation for Personal Injury (The Pearson Commission) Cmnd
7054. A wide-ranging attack is S. D. Sugarman, "Doing Away with Tort Law," (1985) 73
Calif. L.R. 555; See also R. L. Abel, "A Critique of American Tort Law," (1981) 8 Brit. J. Law
and Society 199, 200. See also R. L. Abel, "Should tort law protect property against accidental
loss?" in M. P. Furmston, Law of Tort, Policies and Trends in Liability for Damage to Property and
Economic Loss London, 1986, p. 155. (His answer is "No".)
3 Among the few are E. Veitch, East African Cases on the Law of Tort London, 1972, and G.
Kodilinye, The Nigerian Law of Torts London, 1982. And see C. Muburimusoke, "Application
of the Received Law of Torts in East Africa and the Problem of Transplanting Legal Norms,"
in T. W. Bechtler, Law in a Social Context: Liber Amicorum Honouring Professor Lon H. Fuller,
Deventer, 1978.
4 Gray, "The Development and Function of the Law of Tort in the Twentieth Century in
Australia and New Zealand," (1965) 14 ICLQ 390.
5 There is an emphasis on Nigeria, because there are more reported cases from that country,
and because of my own greater knowledge of Nigerian than other African law.
161

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162 The Functions of the Law of Torts in Africa [1988] J.A.L.
There is a dearth of judicial statistics in African countries, and we are

thus dependent upon the law reports for any sort of quantitative answer to
questions about the uses of the law. There is no doubt that a count of
reported cases will seriously under-represent the more common types of
cases, of which the most obvious is road accident cases-negligence in fact.
No claim for statistical reliability is therefore made for the following brief
analysis of the reports of a few countries.
TORT COUNTRY/YEARS
Zambia Tanzania Ghana S Leone
1976-83 1973-9 1971-9 1950-69
Negligence 18 4 30 16
Defamation 12 6 9+3* 13
Nuisance 1 1* 2 1
False imp 5 3+ 2 4
Tr. person 1 1 1
Tr. land 2 1 5 9
Conversion 1 2 3 3
Cattle tresp 2*
Seduction 1+1* 2*
1* 1*
Adultery
Workmens Comp 2 3
Trespass to goods 1
Statutory duty 1
Occupiers Liability 1
Detinue 2 4
Deceit 1
Kidnap child6 1
Use fetish7 1
Malicious prosecution 2 5
Breach of illegal
contract8 1
All cases 396 436 690 530

All tort 38 (7.6%) 25 (5.7%) 71 (10.3%)59 (11.1%)
* Cases under customary law.
Excluding some malicious prosecutions.
In Lagos over a two-year period9 there were 308 cases r

41 (15.3%) were in tort: 1 each in false imprisonment and
the person, 2 in nuisance, 7 negligence, 11 defamation an
land.
Unrepresented in these figures, but not insignificant, are a few types of
cases, including most importantly passing off. Most areas of the law do
figure in the reports, and many of the familiar issues are well covered. It is
6 The case is Braun v. Mallet [1975] 1 GLR 81.

7 This was held actually not to constitute a cause of action-Obeng, Alias Nkobiahene v. Dzaba
[1976] 1 GLR 172.
8 Held not to give rise to an action in tort-Beckley v. Evans 1963 ALR SL 70.
9 Last quarter of 1978 to third of 1980. The reports used are the Cyclostyled Cases of the High
Court of Lagos, which are not now cyclostyled, but printed in quarterly volumes; the abbreviation
is CCHCJ.
'o Which is discussed briefly below.

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Vol. 31, Nos. 1 & 2 The Functions of the Law of Torts in Africa 163
no longer necessary to teach the law of tort in Africa by reference to such

exotica as camels in zoos."
It is interesting to note what the law is not doing. Especially striking is the
dearth of "new" torts. It looked, briefly, as though the Western State Court
of Appeal in Nigeria was striking a blow against corruption in one case, but
the attempt fizzled out in the Supreme Court.'2 There is one Sudanese case
recognising some right of privacy.'3 But on the whole counsel have not
sought and courts have not granted novel rights of action. Just as in a famous
criminal case a Nigerian court refused to recognise a belief in witchcraft as
giving rise to a defence to murder,14 so the courts have refused to hold that
it could be a tort to subject another to a fetish.'5 Even within the scope of
the existing torts the courts have rarely pushed against the boundaries; the
courts have been followers and the decisions they have followed have been
those of English courts. It is in the context of damages that the most frequent
expressions of the determination not to be bound by English courts occurs-
and there it is quantum, essentially a matter of fact, that is involved. A
Sierra Leonean judge said:
"Is it not better to start and end in Sierra Leone? In England courts do not
find out what would have been awarded in comparable cases in the United
States of America, Australia, India or anywhere else and then translate it into
terms of England, they start and end in England."'6
But this independence of mind is rarely manifested with respect to other
issues. The basic framework of the individual torts with their peculiarities,
whether they require proof of damage or are actionable per se, the rule in
Smith v Selwyn,17 even that rule of evidence which requires that any defamation
expressed in a language other than English be proved as a foreign language
even if all parties in the case speak it as their mother tongue, have been
applied in their full and strange rigour. This, as we shall see, is not to say
that the law of tort has no capacity to adapt to local circumstances; the
reasonable man is a flexible, even amorphous, concept, and the courts in
Africa have been able to take some account of their conception of indigenous
needs,19 although within the bounds set by the basic structure of the field.
" See W. L. Twining, "The Camel in the Zoo", in I. G. Shivji, Limits of Legal Radicalism
(Dar es Salaam, 1986) 15.
12 See below, p. 174.
13 Ahmed Hamid v. Amouna Hassan [1969] SLJR 165 (not a very satisfactorily argued case).
14 Gadam v. R. (1954) WACA 442.
15 Above, n. 7.
16 Massally v. Beckley [1961] 1 SLLR 192, and see also Kimothia v. Bhamra Tyre Retreaders [1971]
EA 81.
17 [1914] 3 KB 98; see discussion in e.g. Ibekwe v. Pearce [1960] NRNLR 12. But see Vantol v.
Omori [1975] NMLR 231 holding that the rule is inapplicable in the northern states of Nigeria
since there is no such concept as a felony under the Penal Code.
18 E.g. Eliofobiri v. Anejemba 0/4A/76 2.6.77, per NWOKEDI, J., "She has been shut out of
proper determination of her case on merits by a legal technicality which is not within her
competence to understand or appreciate"! To be fair one should also note another unreported
case in which the judge declined to hold Igbo to be a foreign language where nearly everyone
involved was Igbo-Iwowo v. Emelieze 0/7/76, 4.2.77 (Mojo BARE, J.).
19 The perception is "theirs" especially because as R. B. Seidman points out-State, Law and
Development New York, 1978, p. 366-the system does not permit evidence of the needs of society
such as might, for example, be presented in a "Brandeis brief'.

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CUSTOMARY AND COMMON LAW
It ought to be the case that the law of tort is of almost no significance in

Africa. Normally legislation provides that, where parties are African,20
customary law should apply unless they have agreed to the contrary (which
will rarely be relevant in the tort context) or unless the nature of the
transaction precludes the application of customary law. On the whole, what
actually happens is that if a case is brought in a customary court then
customary law will be applied and if it is brought in a court within the
"English" system the common law will be applied without the point actually
being argued at all.21 There is a somewhat odd Nigerian case in which it
was held that a road accident fell into the category of "transaction" to which
customary law could not be applied, a holding which, with respect, flies in
the face of both practice, for it is obvious that many customary courts do
indeed deal on a daily basis with such cases, and common sense.22 Ghana is
one of the few countries where the issue of internal conflicts of laws in the
context of tort seems to have been addressed with any regularity. Most of
the cases have concerned slander or domestic actions analogous to seduction
or enticement. A rather curious example is Mate v Amanor2 where the court
held that under s. 49 of the Courts Act it had "unfettered discretion" to
adopt and apply remedies from any system of law where no customary law
existed. It held that there were no customary rules of enticement (unlike
seduction) and therefore applied the common law rules, despite the fact that
they were outdated-and promptly called on the legislature to abolish them!24
There have been a very few cases in which rules of customary tort law
have been declared repugnant to "natural justice".25 But the aspect of the
customary/common law relationship which is most germane to this paper is
the extent to which the common law functions to uphold or undermine
interests recognised by customary law. There have been some obvious failures
in the former respect. For example, the common law of defamation has not
on the whole absorbed customary law notions of what is defamatory. A
major difference between the common law and customary law is that the
latter often considers abuse to be actionable. Even in a quarrel it is actionable
to call someone a thief, a whore or a slave.26 A judge in Ghana observed:27
"In this country, where words of abuse are taken seriously, it would in my
opinion, be socially intolerable if customary law provided no sanctions against
20 The actual wording varies: it may be "African" or "native" or refer to nationals of the
country concerned, and these words may be defined in various ways. On the whole area, see
A. N. Allott, e.g., New Essays in African Law, London, 1970, Chap. 4, "Internal Conflicts of
Law: Principles and Statutory Provision" and Chaps. 6 & 7, "Factors Affecting Choice of
Law".
21 I. 0. Agbede suggests that this is much less true than used to be the case: "Conflict
between Customary and Non-customary Systems of Law: Preliminary Observations" (1972) 5
Verfassung und Recht in Ubersee 415, though one might observe that although customary land law
rules are now not uncommonly applied in the High Courts, this is much less true of customary
rules of delict, on which there is a dearth of research.
22 The case is Ojo v. Edoh [1964] MNLR 12.
23 [1973] 1 GLR 469.
24 Ibid., 477.
25 Including Addae v. Asante [1974] 2 GLR 288 (vicarious liability for seduction by son), and
a similar Tanzanian case: Wanyangi v. Romara [1977] LRT n. 7.
26 "According to Ishan native law and custom it is a very big crime to call someone a slave"
Ataghama v. Azeke U/104/71 July 11 1972, (Unreported-High Court, Mid-Western State of
Nigeria).
~ Wankajiwaa v. Wereduwaa [1963] 1 GLR 332.

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a man who finds pleasure in injuring the feelings of his neighbours by

vituperation."27
But another Ghanaian judge has said that the principle of natural justice,
equity and good conscience ought to have been applied long ago to abrogate
the customary law rule and that "the law has more serious problems to
tackle than silly vituperations".28 At common law a statement to be actionable
must be defamatory of the plaintiff personally, and defamation of parents
will also often fall foul of the rule that there can be no action for defamation
of the dead.29 But under customary law it is often actionable to defame a
person's parents; indeed merely to name him or her may be enough.30 Some
commentators have suggested that the common law in Africa ought to be
brought more into line with customary law in these respects.31 It is interesting
to note that that among other systems of law that do give remedies for abuse
which injures feelings is Roman-Dutch law, which is the received law in
parts of Africa.32
However, in some contexts we find that the courts have permitted common
law actions although they are at bottom claims based upon customary law.
The Nigerian courts at least have not hesitated to permit the action of
enticement even where the parties were married under customary law. In
Wagbara v Wobo,33 the court expressly held that it did not matter what type
of marriage was involved. It may be that the reason why some parties have
brought their actions under the common law although they were married
under customary law was that, where the wife was enticed to leave but there
was no question of adultery, the remedies under the latter system were rather
less developed.34 Nor on the whole was there any remedy under customary
law for the wife whose husband was enticed away.
In Nigeria there have been significant numbers of cases brought for
trespass to land held under customary tenure even though in theory one
might think that it should not be possible. It has been held that a person
allocated land to farm or to live on by his family or community may sue.35
In some African farming communities shifting cultivation is practised and
land may be allotted to an individual for one farming season only; there is a
somewhat unclear statement in one Nigerian Supreme Court case suggesting
that this might prevent the allottee in trespass-TAYLOR, FJ., said that "one
must give further allowance"' 36 to the fact that a grantee "rarely received a
grant of the identical area on each farming season". One does find cases in
which trespass protects possession of a sort which would not be common
under the common law-for example someone who had planted trees could
27 Wankajiwaa v. Wereduwaa [1963] 1 GLR 332.

28 Nkrumah v. Manu [1977] 1 GLR 176.
29 But note the Committee on Defamation in England, Cmnd. 5909, para. 423.
30 In Yola v. Anya, Makurdi Grade 'B' Court, case No. 94 of 1962, ubanka (Hausa for "your
father") held to be defamatory.
31 See S. K. Date-Bah "Reflections on the Law of Defamation in Ghana" (1973) 10 UGLR
129.
32 See C. F. Amerasinghe, Aspects of the Actio Iniuriarum in Roman-Dutch Law, Colombo, 1966.
Another example of the gulf between customary law and common law ideas is the case of
Kiwanuka v. Obote, Case No. 315 of 1965, 146, discussed briefly below, p. 178.
33 (1971) 1 RSLR 14.
34 See Mate v. Amanor [1973] 1 GLR 469 and see the observations of E. I. Nwogugu, Nigerian
Family Law, Ibadan, 1974, p. 90.
35 Tongi v. Khalil (1953) 14 WACA 331, Emegwara v. Nwaimo ibid. 347, Anthony v. Onyebashi
[1974] 11 SC 1.
36 Further in the sense that it was in addition to the fact that no allocation had been made
to an individual.

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sue for trespass to the trees although he neither owned nor had leased the
land,37 or someone who purchased under customary law a house, thus
acquiring the right to the building and the spot it occupied so long as the
house stood only.38
Similarly a right under customary law may operate as a defence to an
action for the common law tort of trespass. In one Nigerian case the court
said,
"... the chiefs and elders had taken a decision in 1956 that all palm fruit [in
the plaintiffs palm bush] be reaped for the benefit of the community: namely
to utilise the proceeds in completing the Oba's palace. It is not disputed that
this is the true native custom of the Iragberi people. In the circumstances,
the act complained of... cannot be regarded as an act of trespass."39
Although the cause of action is a common law one, the courts do not require
that the custom in question be established from time immemorial in the
common law sense-that is since 1189; as the Western State Court of Appeal
said, "It is intended to convey the meaning in an exaggerated manner that
the event happened a long time ago and in our view 200 years is long
enough".40
ACCIDENTS AND NEGLIGENCE
The overwhelming majority of negligence cases concern personal injury,

especially that sustained in road accidents. A closer examination of the cases
from Nigeria and Zambia which formed the basis for the tables given earlier,
shows the following pattern:
NIGERIA ZAMBIA
Road accidents 4 Road accidents 9
Mariufascture 1 Professional 2
Neg. of Bailee 1 Bank 1
Total 6 Total 12
There are far mor

which is what one
have horrendous ro
Accidents and
Year Accidents Deaths
1975 32,657 5,552
1980 32,138 8,736
1985 28,976 9,221
* Source, police statisti
(Apapa, 1986) p. 86, wh
There are relatively
rare in African courts
fact, of course, such c
37 E.g. Okoh v. Olotu (195

not trees leased so landlord
38 Amori v. Akande [1975]
39 Okunola v. Oluroyewa 1
40 Adeosun v. Oyarinde [19
41 For some figures for Z
19 Med. Sci. & Law 61: mor
42 [1932] AC 562.

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Africa they were until recently virtually unknown. There have been a few
cases in Nigeria and Ghana on contaminated biscuits and beer, for example
(indeed, so many beer cases, and so few others, that it almost amounts to a
fashion for suing breweries!).43 Generally, however, the cases are indeed
"scanty".44
Another sub-field of negligence which is hardly represented in the African
law reports, is occupiers' liability. It is possible to identify about one case
from each of a number of countries. There is a Ghanaian case where
demolition workers were held liable to trespassing children,45 a U
case of road builders being held to be occupiers,46 a Nigerian case of a
atypical nature involving ships in Lagos harbour,47 a man who sli
some ice-cream on the floor of a Zimbabwean supermarket48 and a
case which, significantly, involved an expatriate (a solicitor no le
injured himself in a swimming pool while on holiday.49 Uganda re
another remarkable case-that of Bakaboineki v Bunyoro District Administ
The plaintiff, attending a celebration, strayed into the bush for some
air and fell into a latrine pit. An interesting symptom of the rarity o
of this type is that Uganda, like many common law African count
seen no neccessity to emulate the English Occupiers' Liability
19575'and it was therefore necessary first to decide whether the plain
a trespasser, a licensee or an invitee!
Among the medical negligence cases there is a notable lack of som
which have troubled the courts of countries like England, the
Australia in recent years. There seem to be no cases of failed sterilisat
or of wrongful life53 (it really is very hard to imagine someone in an
court suing for having had a child!). Nor are there any on "in
consent"--maybe the African patient has yet to expect to be infor
his doctors. There have been cases of liability for negligent carrying o
blood transfusion, which led to gangrene,54 of damaging a child's eye
a forceps delivery55 of (rather unspecified) carelessness in the supervi
a mental patient who fell or leapt out of a fourth floor window.6 A n
43 See Aboagye v. Kumasi Brewery Ltd. [1964] GLR 242 (decayed palm-nut found
Overseas Breweries Ltd. v. Acheampong [1973] 1 GLR 421 (paraffin found in beer); Os
Niger Biscuit Co. Ltd. [1973] CCHCJ 71, Ogbidi v. Guinness (Nigeria) Ltd. [1981] 1 Fed
Ebelamu v. Guinness (Nigeria) Ltd. [1983] 1 Fed. NLR 42. In Sierra Leone: Beckley v. S
Brewery Ltd. 1972-3 ALR SL 1. I have come across no East African cases!
44 See K. Ansa-Asare, "The Case for a Comprehensive Framework of Consumer P
in Ghana" (1981 & 1982) 13 & 14 Rev. Ghana Law 73, 84.
45 Kuofie v. Ahmoah [1975] 2 GLR 99.
46 Itazya v. Water Resources Development (International) Ltd. [1971] ULR 72.
47 Palm Line Ltd. v. Nigerian Ports Authority [1969] NCLR 403.
48Jones v. Maceys of Salisbury (Pvt. Ltd.) [1982] Zim. LR 1.
49 Lougher v. Kenya Safari Lodges and Hotels [1977] KLR 38.
50 [1970] EA 310.
51 This is not to say by any means that one would consider the copying of English
to be of necessity a desirable thing. It so happens that the common law in this are
rightly described as "a jungle of technicalities and refinement" (by MOCATTA, J.
International Ltd. v. Magnet Bowling Ltd. [1968] 1 W:L.R. 1028, 1043). from which
1957 largely delivered it. So unusual are such cases that in the one and only Nige
which arose in Lagos which is the only part of the country which does in fact ha
modelled on the English one the Act was ignored!
52 In England, see e.g., Thake v. Maurice [1984] 2 All E.R. 513.
53 See, for an English discussion, McKay v. Essex Area Health Authority [1982] QB 11
5 Asentekramo v. Attorney-General [1975] 1 GLR 319.
55 Pope John's Hospital v. Kasozi, [1974] EA 221.
56 Igbokwe v. University College Hospital [1961] WNLR 173.

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of recent cases in England, especially those concerned with damages, have

concerned victims of accidents who have suffered catastrophic injuries-
paraplegia and the like. There have been very few corresponding cases
reported from Africa; no doubt this is partly due to the fact that road accident
victims are very frequently not conveyed to hospital with the speed which
might keep them alive, and once there the equipment is often not as
sophisticated as it might be. In other words, patients who might otherwise
have lived in a paraplegic, or even in a severely brain-damaged, condition,
have died. It is notable that in recent years such cases have begun to be
reported from African jurisdictions.57
Actions for negligence (or breach of statutory duty) for injury to workmen
are rare, though a few more have been reported in recent years.58 It cannot
be that African industrial installations are notably safe. Shivji has pointed
to the low rate of enforcement of the safety provisions of the Tanzanian
Factories Acts, and quoted another writer:
"Where enforcement machinery is grossly inadequate, corruption of officials
rampant, genuine trade unions virtually absent and democratic traditions
weak, the industrial safety legislation may not be worth the paper it is printed
on" .59
A partial, but only partial, explanation is the existence of Workmen's

Compensation legislation.6 Although this provides the advantage that the
employer is liable independently of fault, it suffers from a number of
drawbacks. Certain types of injury may simply be excluded, and the levels
of entitlement are fixed and therefore prone to become very outdated. Beyond
a certain salary level workers may be excluded from benefits entirely. And
to take for example the Nigerian legislation, the maximum payment for
permanent total incapacity is N3200!61 The general damages alone in the
Akinbode case (where the plaintiff was held to be 100% incapacitated) were
N 130,000. If the plaintiff's earning capacity is not impaired he gets no
damages at all!62
In theory negligence ought to be the most readily "exportable" of the
torts. The basic principle of liability-that the defendant is liable if he
behaved in a fashion which was unreasonable in all the circumstances of the
case-ought to make the law suitable for virtually any context. There is no
shortage of cases in which the judges have made the point that the relevant
yardstick is what is reasonable in the context in which the accident actually
occurred. A Sudanese judge observed:
"The roads are not well lighted, no pedestrian crossings are made, members
of the public are comparatively careless in their walking across and along
57 There have, for example, been one or two examples of quadraplegia in the Nigerian courts:
Akinbode v. Fasasi [1982] 4 Oyo SHC (Pt. 1) 413, and Songonuga v. Akinwunmi Motors Ltd.
FCA/1/107/80 (Court of Appeal, June 6 1982) cited in Akinbode. For a Ghanaian case of paraplegia
see Kuni v. State Gold Mining Corporation [1978] 1 GLR 205.
8 E.G. Kuni v. State Gold Mining Corpn above n. 57, Yatteh v. Sierra Leone Development Co. Ltd.
1972-3 ALR SL 51, Obakoro v. Forex Co. Inc. [1973] UILR 91, Kussasi v. Ghana Cargo Handling
Co. Ltd. [1978] 1 GLR 170, Bagologoza v. National Parks Trustee [1974] EA 201.
59 K. F. Hirji, "Accidents at Work: The Case of Motor Vehicle Workshops" (mimeo, Dar es
Salaam, National Institute of Transport, 1980 p. 13) quoted in I. G. Shivji, Law, State and the
Working Class in Tanzania, London, 1986, pp. 146-7.
60 For an account of the Nigerian legislation see A. Emiola, Nigerian Labour. Law, 2nd ed.,
Ibadan, 1982, chap. 8.
61 Workmen's Compensation Act, s. 7, Cap. 222, Laws of Nigeria.
62 Ibid., s. 5(1)(a).

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roads, no kerbstones and footways are made for pedestrians, the vehicles are
not well maintained, the drivers on the whole are not very well experienced
etc., etc. Thus it appears that the standard of care required from a driver in
the Sudan is a little greater than may be required in other countries."63
It is not enough for an employer to put up warning notices if he knows he
has employees who cannot read.64 It was held in Uganda that it was not
negligent for a school to allow a boy to chop wood;6 it is possible that in
England, where this is a less common pursuit for boys, the result would have
been different. It is not clear that the cases in which road accidents have led
to property in damaged vehicles being stolen,66 or where drivers have relied
upon the advice through hand signals of others,67 would necessarily have
been decided in precisely the same way in England. The point is that they
have been decided according to judicial perceptions of local geography and
customs. One of the most interesting Nigerian cases is Ekwo v Enechukwu,68
where it was held not negligent for a villager to believe that the best way of
treating an injured hand was to go to a herbalist rather than to the
hospital. He was held not contributorily negligent when the wound became
gangrenous.
Complete liberation from the influence of the man on the Clapham
omnibus would involve the absence of reference to English cases, since
negligence or no negligence is a question of fact on which the citation o
precedent is inappropriate. It cannot be said that this position has been fully
achieved. It was, with respect, unnecessary for a Nigerian court, when
deciding whether the reasonable employer would provide goggles, to refer
to English authorities stressing the importance of sight,69 nor did reference
to Haley v. London Electricity Board70 assist in deciding whether an East African
driver ought to have realised that a man crossing the road alone was blind.7'
The rules relating to vicarious liability, applied with their full rigour as
they seem to be by the courts in Africa, are something of a fetter on the
possible role of the tort of negligence. It might seem that it is no worse that
an employer is not liable if his servant was not acting in the course of his
employment in Africa than it is in England. However, at least in England a
professional driver, while not wealthy, is unlikely to be such a "man of
straw" as he undoubtedly will be in any African country. Secondly, there
are virtually no schemes in African jurisdictions equivalent to the Motor
Insurers' Bureau.
More regrettable, however, is the enthusiastic adherence to the Twine v.
Bean's Express72 line of authority. This was the much criticised English case
in which it was held that where a driver had been forbidden to take
passengers, he was-for the passenger-taking part of the enterprise on
63 Magzoub Mustafa El Tinay v. Hassan Mohammed Hilmi [1986] SLJR 100, 102; it m
that this comes perilously close to saying that drivers must be careful because drive
careless which is actually what the judge seems to have said in a Kenyan case Mugwe
[1971] KHCD 112/7.
64 Kussassi v. Ghana Cargo Handling Co. Ltd. [1978] 1 GLR 170.
65 Nishyirembere v. Mubende District Administration [1972] 1 ULR 90.
66 E.g. Overseas Touring Company (Road Services) Ltd. v. Africa Produce Agency (1949) Ltd. [1962]
EA 190.
67 E.g. Ajirobah v. Unity Transport [1966] GLR 332.
68 (1954) 14 WACA 512.
69 Western Nigeria Trading Co. Ltd. v. Ajao [1965] 2 All NLR 100.
70 [1965] AC 778.
71 Namyalo v. Ratanshi [1968] EA 14. See the comment of Muburimusoke, op. cit. pp. 164-5.
72 [1946] 1 All E.R. 202 applied in, e.g. Jarmakani Transport Ltd. v. Abeke [1963] 1 All NLR
180, Kesi v. Sedya [1973] EA 51.

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be taken as being outside the scope of his employment. It is common

knowledge that travelling on commercial lorries is the poor man's form of
transport; clearly this knowledge must have inspired the prohibition on
taking passengers in Jarmakani v. Abeke, one of the major Nigerian cases, in
which the court applied the Twine principle. It seems unlikely that passengers
appreciate that accepting such a form of transprt deprives them of any right
to compensation. Probably they do not think in terms of compensation
anyway, but that is not generally enough to deprive one of rights. Nor do
they travel free, although the money they pay goes to the driver not to the
owner of the vehicle. It would have ensured a fairer outcome if the courts
had adopted an irrebuttable presumption that a vehicle is being driven by
the owner or his servant in the course of his employment, whether in reality
the vehicle was under the control of a servant in the usual sense or even of a
member of the family, or a friend. But the courts in Nigeria rejected the
argument that the owner was liable for his wife's negligence even when she was
doing what amounted to family business.73 In another context, ODESANYA,J.,
showed, with respect, an appreciation of driving realities when he said:
"... the Police Officer testifies that licensed drivers are in the habit of allowing
their friends who are similarly licensed to drive their motor vehicles. If a
driver is tired or for some other reason is unable or unwilling to drive, it
appears to me that such an arrangement will sometimes enable the vehicle to
earn enough money for its owner at the end of the day."74
but it is not clear that all judges would share his view.
PROPERTY INTERESTS
Perhaps the most striking feature of the figures given earlier is the large
number of trespass to land cases in Nigeria. This is in truth a misleading
impression, for the overwhelming majority of these are not the "classic"
trespass case where one person has intruded on the land which is clearly
another's, but the trespass issue is raised as a vehicle for the settling of a
dispute as to title. Very often the trespass plea is in the alternative to an
action for recovery of land. If we take a number of relatively recent Nigerian
law reports75 we find that there were 31 trespass to land cases, and in at
least 22 of them the underlying dispute was really as to title, although
trespass in the "normal" sense may also have taken place by someone who
believed he had title, or who was making a point by the invasion.
The notorious technicalities of the law of trespass have been fully embraced
in African jurisdictions. The concept of possession for the purposes of trespass
seems to have caused a good deal of trouble, and at times, it geems, injustice.
So confusing has proved the distinction between the plaintiff who was in
possession at the time of the wrong (and able to bring trespass) and the one
who was not (and therefore must bring an action for recovery of possession)
that counsel frequently make the mistake of bringing the wrong action-or
of bringing two incompatible actions-and even courts occasionally get it
wrong. One of the ways in which the common law sought to mitigate such
73 Duclaud v. Ginoux [1969] 1 All NLR 26.

7Akintunde v. Rufai [1972] 11 CCHCJ 121, 123.
75 Those the contents of which have been analysed earlier plus [1980] Fed. of NLR [1977]
National Court of Appeal Reports, [1984] 1 SCNLR.
76 See e.g. B. 0. Kazeem, J., in Asabiyi v. Lasisi [1973] 6 CCHCJ 85, 94 "... since the
plaintiffs claims are for damages for trespass and an injunction, title is involved".

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injustices was by the use of fictions; sure enough, these fictions also are to
be found in the courts of Africa. Thus the doctrine of trespass by relation
has been applied to avoid the possible lacuna in rights between the time the
plaintiff was entitled to possession and the time he actually obtained it.77
It may be that the Land Use Act78 will lead to a reduction in the number
of trespass actions, at least as between private individuals. The simplification
of the law may cut down those instances of alleged trespass resulting from
uncertainty, and others who hold or claim land may be reluctant to bring
suits which may reveal breaches of the Act-and therefore lead to forfeiture.
This is not to say that trespass actions are not still brought over land
regulated by the Act.79 However, the new Nigerian legislation is not dissimilar
to that which has been in operation for many years in the Northern states of
that country and elsewhere in Africa (notably East Africa) where, to judge
by the law reports, cases of trespass in the courts are appreciably less
frequent.
It should be noted that, even in Nigeria, trespass cases are not used only
as vehicles for title disputes. A shortage of housing in Port Harcourt
apparently produced a wave of harassment of tenants by greedy landlords,
which had an echo in court.80 The ChiefJudge of Rivers State observed that
there was such a shortage of accommodation that landlords would go to any
length to get rid of tenants in order to be able to let to others at a higher
rent.81 If the landlord is so unsophisticated as to resort to very direct measures
such as removing roofs or windows, or changing the locks on the doors, this
will be trespass. 2 However, if the means used are, if not more subtle, less
direct, the peculiar features of the tort of trespass may thwart the reasonable
expectations of the tenant-so it will not be trespass to cut off the electricity
supply if this is done outside the leased premises.83 Ingenious English
landlords enjoyed the same immunity at common law,84 of course, but there
legislation has at least been passed to deal with the harassing landlord.85
However, there is no Nigerian (or other African equivalent) and once again
the African litigant is trapped into the pecualiarities of the English law
without any reasonable prospect of legislative escape.
Since people have had goods to possess they must have been lending them
to or leaving them with other people. This is certainly evidenced by the fact
that there are customary law cases involving what at common law would be
described as "liability of a bailee". Interestingly, the Nigerian customary
law cases manifest confusion over just the issue that lies at the core of the
77 Pan Bros Ltd. v. Landed Property Ltd. [1962] 2 All NLR (Part 1) 22. Henry v. Taylor 1 Renner
104. Interestingly the East African Court of Appeal avoided the necessity for the application of
this fiction in Moya Drift Farm Ltd. v. Theuri [1973] EA 114, where it held that since the plaintiff
was the registered owner of the land it could sue for trespass even before having taken possession,
relying on the Registration of Title Act of Kenya s. 23 which provided that a certificate of title
is "conclusive evidence" that the person named is "the absolute and indefeasible owner". With
respect this seems to ignore the distinction between ownership and possession, and this was
surely an instance where the appropriate remedy was for an order for possession. Nonetheless
one sympathises with the court's wish to avoid these technicalities.
78 See generally M. G. Yakubu, Land Law in Nigeria, 1985, esp. Chap. 8.
79 E.g. Ezeudo v. Obiagwu [1986] 3 SC 1.
8s E.g. Romeo v. Jumbo PHC/165/76 of 10 February, 1977.
81 Ibid.
82 Ibid. Hinda v. Makanjuola [1978] Oyo SLR 126 (removing roof), Adesuloye v. Martins [1978]
10-12 CCHCJ 345 (windows removed and premises sealed up).
83 Adollo v. Deyemi [1967] LLR 87, Egeure v. Animashaun [1978] 4 CCHCJ 637.
84 Perera v. Vandiyar [1953] 1 All E.R. 1109 cited in the two cases in the previous footnote.
85 See Protection from Eviction Act, 1977, s. 1.

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common law cases-is the bailee liable in the absence of negligence?86 In

one case the High Court went so far as to suggest that it would hold as
repugnant to natural justice, equity and good conscience any rule of
customary law which imposed liability without fault87-a bizarre holding in
view of the fact that the common law in some instances does just that!
Another sign of the antiquity of this problem is the technicality of the
common law, with the Coggs v. Bamard" classification of bailees. Mercifully
this no longer represents the law,89 save for the rules about common carriers,
which have been embraced by African courts.90 In one Tanzanian case the
judge regretted that he was bound by authority to apply the rules relating
to the common carrier although he felt them to be unnecessary in the
Tanzanian context.91 Even that stranger and more peculiarly English
character the innkeeper has turned up in some African jurisdictions!92
The law reports reveal a considerable use of torts alleging deliberate
interference with goods: trespass, conversion and detinue. The possibility of
specific restitution, not available for conversion, means that there is consider-
able enthusiasm for the last. Apart from a not inconsiderable body of cases
where the defendant is the police or some other public body which has seized
or retained goods,93 the other frequent occurrence in the reports include
cases arising out of hire-purchase or credit sale contracts, where the
defendants have repossessed goods.94 There are also a good number of cases
of conversion against banks, which can plead legislative protection provided
they act without negligence and in the ordinary course of business.95 It is
extraordinary how often they fail in this type of defence!9 A somewhat
similar defence is open to some public corporations like the Nigerian Ports
Authority, which are exempt from the normally strict liability of these torts.97
They and other companies involved in importing are not infrequently the
defendants in conversion or detinue cases.98 A less run-of-the-mill case
involved a plaintiff who complained that he had sent his certificates
(unsolicited) to the West African Examinations Council-in support of his
claim that they had done him an injustice in their marking-and had failed
86 Sule v. Dogo PCZ/CVA/7/60 (Provincial Court, Zaria), defendant not liable when hired
bicycle stolen from him; Akene v. Tase Case No. 202 of 1964 Gboko Mixed Court, defendant
who borrowed fishing net was liable when he could not show he was not negligent with respect
to its loss.
87 Ogunfidodo v. Chinwah HOS/28A/68 7 March, 1969, Oshogbo High Court.
88 (1703) 92 E.R. 107.
89 See cases such as Ogugua v. Armels Transport Ltd. [1974] 3 SC 139, 148, agreeing that
degrees of negligence make no sense. On the other hand, there are African cases holding, for
example, that the gratuitous bailee for his own benefit is liable for the "least negligence" as
held in Coggs-e.g. Mohammed Osman El Baroudi v. Mukhtar 1970 (1) ALR Comm. 153. (Sudan).
90 See, e.g., Narsons (Nig.) Ltd. v. Okerinde 1967 (2) ALR Comm. 128.
91 Express Transport Co. Ltd. v. B.A.T. Tanzania Ltd. [1968] EA 443.
92 E.g., Molokwu v. Ogbolowo Enterprises (Nig.) Ltd. W/39/76 (Warri High Court) 4 February,
1977-raising defences under s. 5, Innkeepers Law.
93 Discussed briefly below, p. 176.
94 For examples see United Dominions Trust v. Ladipo [1971] 1 All NLR 102 (action for detinue
actually failed), SCOA (Motors) Onitsha v. Abumchukwu [1973] NMLR 188, Yekorogha v. Nigerian
Technical Co. Ltd. (1978) 1 FCA 12.
95 Under the Bills of Exchange Act 1882 where this is applicable and also under versions of
the English Cheques Act 1957-e.g. the Nigerian Bills of Exchange Act 1964.
96 E.g. BEWAC Ltd. v. African Continental Bank Ltd. [1973] 6 CCHCJ 12, United Nigeria Insurance
Co. v. Muslim Bank (West Africa) Ltd. [1971] 1 All NLR 314.
97 Ports Act s. 91.
98 E.g. Koko v. NPA [1973] 3 CCHCJ 5, Jolliters Chemists (Nig.) Ltd. [1974] 7 CCHCJ 1117,
Litigo Enterprises (Nig.) Ltd. v. International Aviation Services Ltd. [ 1980] 1-3 CCHCJ 258, Ogunmefun
v. Nigeria Airways Ltd. [1979] 7-9 CCHCJ 186.

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to get them back. The courts found some difficulty in deciding on the
appropriate damages for this case, in the light of the fact that the documents
themselves were of little value, but represented a good deal more to the
plaintiff.9
Another category of cases of some numerical importance involves property
of a less tangible nature: there are a goodly number of cases of passing off.
The African Law Reports (Commercial Series) Index, reveals, for the years
1964-79: 3 cases from Kenya, 5 from Nigeria, 2 from Sierra Leone and one
from Uganda. Why should it be that while passing off is a relative rarity in
the pages of the English law reports, it should flourish in Africa? On the one
hand it may reflect the fact that there does seem to be a genuine problem of
"fake" products. But most of the actions are complaints not about products
which are intended to appear identical to those of the plaintiff, but of those
which appear sufficiently similar in presentation to be confused, especially
by ill-educated consumers. In one case the court pointed out that most
customers of unpackaged codeine tablets would be "kobo-kobo"'l' customers
and might be unable to distiunguish tablets of different manufacturers, each
bearing a letter 'B'.102 It has been suggested, with some justice, that
the courts underestimate the ability of the unsophisticated consumer to
distinguish between goods, and their trademarks.03
The topic of economic loss is one which has much exercised academic
lawyers in England in recent years. It has caused relatively few ripples in
African courts. True, Hedley Byrne v. Heller104 has been accepted and indeed
applied in a somewhat similar Nigerian case.105 Recently the Nigerian Court
of Appeal seems to have accepted the Spartan Steel view that there is liability
for economic loss which is consequent upon physical damage. It is not clear
what the court would have done had the plaintiff in that case claimed only
financial loss; the loss flowed from physical injury to the plaintiffs property
which resulted from damage to a transformer belonging not to the plaintiff
but to the electricity corporation.'06 However, as the court itself recognised,
this was rather different from the usual English case for the transformer was
for the particular use of the plaintiff rather than for the benefit of the public
more widely. Some years ago, in the Osemoborl07 (tooth in a biscuit) case the
court actually awarded economic loss of a sort not actually, until this day,
recognised by the English courts: it awarded the plaintiff 4d. for the packet
of biscuits on which she had wasted her money! This seems to have been
by oversight rather than a deliberate piece of judicial adventurousness.
99 Koroye v. WAEC [1977] 2 SC 45.
100 And also of actions for infringement of registered designs and relating to registration of
trademarks, which raise similar issues.
101 Literally "penny each", that is those who buy items in penny numbers, not in packets.
102 Boots Co. Ltd. v. United Niger Imports Ltd. 1977 (1) ALR Comm. 279. Contrast East African
Industries Ltd. v. Trufoods Ltd. 1972 ALR Comm. 96-purchasers of fruit drink sold in
supermarkets likely to be sophisticated.
03 See Babafemi, "Trade Marks and the Illiterate", (1974) 18 JAL 180. For another
interesting case see BAT Uganda Ltd. v. Martin Brinkmann AG 1969 (2) ALR Comm. 393, a case
of registered trademarks, "Rex" and "Lux" in which a teacher of languages at the University
gave evidence that people tended to confuse "r" and "I".
'04 [1964] AC 465.
1"5 Imarsel Chemical Co. Ltd. v. National Bank of Nigeria Ltd. [1974] 4 ECSLR 355. For other
interesting African cases see Ngaire v. National Insurance Corporation of Tanzania Ltd. [1973] EA
56, and Tobaddo Finance (Pvt) Ltd. v. Zimnat Insurance Co. Ltd. [1982] 1 Zim. LR 47.
106 Okeowo v. Sanyaolu [1986] 2 NWLR 471. (Spartan Steel & Alloys Ltd. v. Martin & Co.
(Contractors) Ltd. [1972] 3 All E.R. A Spartan Steel concern about floodgates was also discussed
in the Zimnat case: see the previous footnote.)
107 See n. 43 above.

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In the context of economic loss it is worth noting that there have been
over the years a number of instances of litigation against allegedly negligent
lawyers. The words of a Ghanaian judge are interesting:
"We think that in a fast developing country like our own, where the numerical
strength of the legal profession is on the increase, it is in the public interest
that professional standards should be closely watched and that lapses in
lawyers should be seriously viewed."'08
Of other "economic torts" there have been few examples. There have been
a very small number of cases, in business rather than labour relations
context, of inducement of breach of contract and conspiracy.'09
TORT AND ABUSE OF POWER
The law of tort has sometimes a role to play in controlling abuse of power
by public officials, or of rights by private citizens. In Nwankwere v. Adewunmi, l0
the plaintiff complained that the defendant refused to issue a certificate of
road worthiness until he had been bribed (or to be accurate until he had
been paid a further bribe!). It is not entirely clear whether the failure was to
deliver up an existing certificate or issue a new one, and there is no discussion
of which tort was involved. A case more explicitly based on abuse of power
was Odukale v. Ibadan City Council,"' where the plaintiff had been denied a
licence for his buses for the most blatant-indeed publicly announced-
political reasons. In the Western State Court of Appeal the plaintiff succeeded
but in the Supreme Court it was held, rather oddly, that the case was based
upon non-feasance and therefore could not succeed.112
There has been one striking absence from the roll of defendants in Nigeria:
there are no actions in tort against the state. The doctrine that "The King
can do no wrong" extends both to elected politicians and to military rulers!
A Bill promised as long ago as 1961113 never became law. Interestingly, one
or two actions under the enforcement of fundamental rights provisions of
the 1979 Constitution led to the award of compensation against the State,
although it is not entirely clear that this is strictly speaking an example of
liability in tort.14 In this respect Nigeria has lagged behind most other
common law African countries, and in other jurisdictions one will see the
occasional case of an action in tort against the State."5 The position under
the Nigerian Constitution of 1979 could be said to be in some doubt. There
have been cases which have held that the requirement of the Attorney-
General's fiat under the Petitions of Right Act in the case of an action against
108 Fodwoo v. Law Chamber & Co. [1965] GLR 363.

109 E.g. Agip (SL) Ltd. v. Edmask 1972-3 ALR SL 218 (C induced breach of lease by A to B
so land could be leased to him).
'O [1962] WNLR 298.
11 CAW/102/68 10 April, 1969.
112 SC 289/1971 8 September, 1972.
13 By the then Federal Attorney-General, Dr. T. O. Elias. Another Bill was drafted in 1969
but did not become law.
114 The best known case is Shugaba Abdurrahman Darman v. Federal Minister of Internal Affairs 3
Nig. Const. LR 915; the relevant section was 42.
E.g. Nyasalu v. AG (1983) ZLR 105 (medical negligence alleged on the part of a doctor at
the university teaching hospital). Paton v. AG (1968) ZLR 185 (action in false imprisonment
when plaintiff deported), Magwara v. Minister of Health [ 1980] Zim. LR 315 (medical negligence).
In a Sudanese case the government was held liable for deceit: Sudan Government v. Abdel Rahman
El Akib [1961] SLJR 55.

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the state in contract is contrary to the Constitution;16 one could equally

argue that total absence of any right to sue in tort is contrary to the
Constitution.
Meanwhile, what happens? The individual wrongdoer, of course, can be
sued-and the litigant may face another hurdle: special short limitation
periods for actions against public servants under the Public Officers'
Protection statutes-where an action is brought
"for any act done in pursuance or execution or intended execution of any law
or of any public duty or authority, or in respect of any alleged neglect or
default in the execution of any such Law"."7
It is hard to disagree with Ehindero who observed,"8 "One may ask the
propriety of awarding an injured citizen damages against an impoverished
Policeman ... The burden of an ill-trained Police Force should be borne by
the State not by the individual Policemen". In a recent case the Nigerian
Court of Appeal seems to have been prepared to hold that for the purposes
of the law of tort a policeman was the servant of the Police Service
Commission (since defunct). l1 One member of the Court was even prepared
to hold the Inspector General of Police liable, though this flies in the face of
a much previous authority.120
If one is injured by the servant of a local authority or of a statutory
corporation (or, in most countries, by a servant of the state), the ordinary
principles of vicarious liability will apply. But those principles may operate
to deprive the plaintiff of an effective remedy, at least if the only remaining
possible defendant is someone like Ehindero's impoverished policeman. We
can see this from some interesting Ugandan cases concerning the excessive
use of force: when a policeman killed an innocent man while quelling a riot
the government was held liable; as the judge said he was sent to quell a riot
and given a gun to do it, so the state should be liable.121 A similar result
was reached when, after an attempt on the President's life, soldiers were
stationed in the streets and some of them beat up and shot the plaintiff.122
But where soldiers bayonetted to death the driver of a lory with which their
own had collided, the judge found himself regretfully obliged to hold they
were not in the course of their duty.'23
The tort of false imprisonment is one of the most important of the torts in
the context of controlling the excesses of public servants, and is employed
most frequently in this context.'24 Many of the cases are instances of arrest,
but there have been cases of people detained after a conviction had been set
aside,'25 or after a sentence had been served.126 An unusual case involved
the President of the Nigerian Bar Association who sued the judge who had
him detained for contempt of court! Naturally enough he failed on the basis
of judicial immunity (although he did succeed in his appeal against the
116 See Nigerian Oilseeds & Chemical Products Ltd. v. A-G Imo State (1984) 5 Nig. Const. LR 487.
117 For a fairly recent example (of a police officer in bad faith) see Oyegun v. Commissioner of
Police [1982] 1 Oyo SHC (Pt. II) 159.
118 Op. cit., p. ix.
"9 Under Decree No. 1 of 1984.
120 Oyakhire v. Obaseki [1986] 1 NWLR 735.
121 Muwonge v. AG 1966 (1) ALR Comm. 139.
122 Sengendo v. AG [1972] EA 140.
123 Namwandu v. AG [1972] EA 108.
124 See B. B. Pande, "Protecting the Individual Against the State through False Imprisonment
Actions: the Tanzanian Experience" (1983) 32 ICLQ 506.
125 Imam v. Bornu NA (1959) 4 FSC 252.
126 Rashid bin Abullah v. Cartwright 1 ZLR 407.

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conviction for contempt).127 Other sub-species of trespass to the person also

offer a remedy for abuse of office, as in the case of the Nigerian Assistant
Superintendent of Police who ordered his junior officers to beat and chain
the plaintiff, and was sued for battery.128
Personal physical integrity may be the most prominent of the interests
protected from official infringement by the law of tort, but the law reports
quite frequently indicate the use of the law to claim compensation for
interference with property by government servants. The over-zealous (if
that is not too kind) planning authority which demolishes the plaintiffs
premises,129 the city council which tows away his car,130 or evicts him from
public housing,131 the customs officers who seize his property alleging that
he has failed to pay duty or obtain an import licence, the police officer
who seizes vehicle documents without grounds'33-all figure in the law
reports. There is an interesting pre-independence Zimbabwe case where one
part of the army had trespassed in the home of the commander of the Selous
Scouts to "bug" him.'34 Perhaps the largest single class of complaints against
public officials is the quite common action against bailiffs for wrongful, or
excessive, execution ofjudgements.'35
EXEMPLARY DAMAGES
The principle in Lord Devlin's speech in Rookes v. Barnard'36-that

exemplary damages are to be awarded only in exceptional circumstances-
has been accepted in most African countries, whether they feel themselves
to be formally bound by the decision or not, although not by the Zambian
Supreme Court.l37 The exceptions have also been endorsed, and for our
immediate purposes the significant one is that such damages may be awarded
against public officials who are guilty of abuse of office. In a Zambian case,138
it was held to merit exemplary damages that the officers acted knowing that
they were in breach of the law-knowing in fact that a law which would
permit them to do as they wished was being enacted, but was not yet law.
In a Nigerian case, apparently decided in ignorance of Rookes, the court
awarded exemplary damages in a conspiracy case where the plaintiff was
suspended by his fellow town councillors. The Judge said:
127 Boyo v. Atake (1971) 1 UILR 403. For the report of the appeal on the contempt issue to
the Supreme Court see Boyo v. A-G Mid-Western State [1981] 1 All NLR 342.
128 Obochi v. Uba MD/51/1976 (Makurdi) 4 November, 1977.
129 Asuni v. Ibadan Town Planning Authority [ 1971] NMLR 64.
130 LCC v. Isikalu [1964] LLR 221; Arthur v. LCC [1967] Fed. NLR 157.
131 Dosunmu v. LCC [1966] LLR 63.
132 George v. Board of Customs and Excise [1979] 2 Fed. of NLR 207, Thuo v. AG [1977] KLR
89.
'3 Adefunke v. Ikpehai [1958] WRNLR 33
134 Reid-Daly v. Hickman [1980] Zim. LR 540.
35 E.g. Mbanugo v. UAC (Nigeria) Ltd. [1961] All NLR 775.
136 [1964] AC 1129.
17 I have discussed this in a note on Nigeria, Cottrell, "Eliochin (Nigeria Ltd.) v. Mbadiwe
[1986] 1 Nig. WLR 47", in (1985) 30 JAL 204. That recent case did not actually decide the
matter for Nigeria. There have been Nigerian cases which have rejected Rookes, e.g. Gbadamosi
v. Sami [1980] Ogun SLR 120; contrast Adesanyua v. IGP (1982) Fed. of NLR 102. The Zambian
case is Times Newspapers v. Kapwepwe [1973] ZLR 292. See also "Punitive Damages-Reassessed"
(1972) 21 ICLQ, esp. pp. 121-3 on East Africa. One interesting case mentioned there is Kanyike
v. Attorney-General, Civil Suit No. 196 of 1967, where exemplary damages were awarded when
the plaintiff had been imprisoned for four days by the Ugandan army.
13 Paton v. AG, above, n. 122.

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". .. it is a notorious fact the corruption and abuse of authority is rife among
most Municipal and Urban Councils in this country which fact I believe is
responsible for the removal of most councillors in Eastern Nigeria ... In
awarding damages I have not only the defendants in mind but such others
like them that may rear their ugly heads in future as councillors in like
manner."139
DEFAMATION
In many African law reports (if not in the courts) defamation cases come
a close second to negligence in terms of numerical importance. It is no doubt
true that in comparison with England these days litigation in Africa in this
area is very often a political activity, or at least involving prominent people.
Many of the parties are household names: Awolowo, Kapwepwe, Obote, for
example; very often the actions are against newspapers owned by political
opponents.140
However, this seems to be becoming rather less true: certainly in Nigeria
there have been a good number of defamation cases arising out of employment.
Most of the plaintiffs were protecting senior positions: a salaried lawyer with
the Ports Authority, senior management personnel, foe example.'14 However,
one case involved a security guard who was accused of being a "dead wood"
by his superior.142
The issue of whether a bank can be held liable in libel for "bouncing" a
cheque and marking it "refer to drawer" or something similar has been
litigated a number of times.143 But perhaps the most striking point about the
"ordinary plaintiff" cases is the number of cases arising out of disclaimer
notices in newspapers. Statements held actionable have included that the
plaintiff was "presenting himself as the personal representative of the
Cameroonian Ambassador",'44 that "He escaped after he was found guilty
of being untrustworthy with this Company's money"'45 and even one to the
effect that the plaintiff was not Manager of the company and had no authority
to transact business on its behalf.46
Few torts involve the application of so many technical rules and so
obviously reflect their historical roots as those of libel and slander. The very
existence of two torts exemplifies the peculiarities. African courts have
agonised over whether a broadcast was libel or slander.147 A Nigerian judge
felt himself obliged to deny a remedy to someone described as "a witch"
because this does not fit into the categories of slander actionable per se
although he did comment that this was "rather restrictive".148
139 Onyekwere v. Okwulehie [1966-7] ENLR 140.

40 This point is made by E. Veitch, "Civil Defamation in Uganda 1960-70" (1871) 7 EALJ
39: he states that out of 12 reported cases, nine involved public figures (13 people); in 9 of the
cases newspapers were defendants.
141 Clarke v. Nigerian Ports Authority [1977] 10 CCHCJ 2325, Adeyinka v. Balogun [1980] 4-6
CCHCJ 57.
142 Okwuwe v. Onifade [1981] 1 Oyo SHC 174.
143 Coker v. Standard Bank of Nigeria [1976] NCLR 174 ("referred to drawer" libellous), Alabi
v. Standard Bank [1976] NCLR 404 ("effects uncleared" not actionable), Animashaun v. Standard
Bank LD/579/67 (not defamatory to say cheque countermanded, cancelled or revoked).
"44 Visas v. Daily Times of Nigeria Ltd. [19751 6 CCHCJ 997.
145 Daily Nation v. Mukundi [1975] EA 311.
146 Obikoya v. Ezenwa [1973] 1 All NLR (Pt. 1) 64. For other cases see De Souza v. George Bros.
Ltd. (1956-7) 8 ULR 115, Caltex v. Oddie (1955) 22 EACA 334.
147 Mukete v. Nigerian Broadcasting Corporation [1961] All NLR 482.
148 Williams v. Chinda PHL/287/75 (Port Harcourt 7 January, 1977, OKARA, J.).

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One principle of the English law above all others, perhaps fits ill into the
African context, especially in those cases which concern the reputation of
ordinary citizens in their communities, rather than the national reputations
of public figures. This appears from the well-known words of Lord Atkin in
his classic definition of "defamatory" in Sim v. Stretch'49 referring to "right-
thinking members of society generally" (my emphasis). In one fascinating
Nigerian case the plaintiff lived and worked in an area recently freed from
"Biafran" control. Apparently someone told a federal officer in the hearing
of the defendant that the plaintiff was an Igbo, and the officer had replied
that her place of work would be blown up. The defendant told the plaintiff's
employer and she was dismissed. The judge held that to say of someone that
he or she belonged to a particular ethnic group could not be defamatory.
He admitted that at that rather tense time in that place some ordinary
people would not draw a distinction between an 'Igbo' and a 'rebel', but
this still could not make the statement defamatory.5
In certain Igbo communities it was customary to dedicate children to the
service of the gods and they and their descendants formed a separate and
inferior caste, known as osu who had, for example, limited land rights, and
with whom others could not marry.'15 Legislation which abolished (in law
at least) the disabilities which osu suffered also provides that it is slander
actionable per se to say that someone is osu.'52 No court, or counsel, it seems,
has adverted to the apparent inconsistency with the Sim v. Stretch definition.
In other words, one may sue in Nigeria for this particular allegation even
thought it would lower one in the eyes of a minority of people, and although
those people are not by statute designated as in effect not "right-thinking".
A Ugandan example further illustrates the problem. The Kabaka was
summoned to Kampala by the Prime Minister, Milton Obote. The Kabaka
alleged that this was contrary to custom and lowered him in the eyes of his
people. The judge said:
"It is not enough for the plaintiff to show that the words tended to lower him
in the estimation of a section of the community, in this case the Baganda, for
to amount to a libel they must do so in the estimation of right thinking
members of society generally . . .153
If it were true that only a small, ill-educated and reactionary section of
Buganda society would think ill of the Kabaka that might be a good reason
for finding against him. But the learned judge, it seems, would reach the
same decision if this were the opinion of the Baganda at large-yet the
Baganda form about 17 per cent of the population of Uganda.
In Ghana a plaintiff complained that her photograph had been used
without her knowledge as a postcard showing a "traditional hairdo" and
that her people, the Fante, would think that only a woman of poor character
would permit her photograph to be used in this way. The court denied her
recovery.154
149 (1936) 52 TLR 669, 671. I have discussed the issue at greater length in Cottrell, "Right
Thinking Members of Society Generally: a Problem in the Export of the Common Law of
Defamation," (1985) 9 Academy Law Rev. p. 173.
150 Mowoe v. Aghoba W/137/67, 15 November, 1968.
151 The legal position on marriage is set out in S. N. C. Obi, The Customary Law Manual
(Enugu, 1977) p. 223 and there is a novelist's account in Chinua Achebe, No Longer at Ease
(London, 1962). In different communities different names were used e.g. oru, ohu, ume, omoni.
152 Abolition of the Osu System Law, Eastern Region Law No. 13 of 1956.
153 Kiwanuka v. Obote, Case No. 315 of 1965, printed in Veitch, East African Cases on the Law of
Tort p. 146. This case has been criticised by Muburimusoke, op. cit.
154 University College Cape Coast v. Anthony [1977] 2 GLR 21.

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The judge in one Nigerian case seems slightly to have departed from the
rule: a preacher of a Nigerian Christian sect was accused of "paganic
practices". He succeeded in his action and the judge said:
"The ways of some of the 'Cherubim and Seraphim' sects who perform some
rituals at Victoria Beach may seem odd to some people but they are entitled
to be protected against any imputation which may tend to cause them to be
hated or despised or shunned by other people, even members of their own
sect. "155
However, the law of defamation is not without some capacity for adapta-
tion. It is implicit in what has been said that the criterion for what is
defamatory is the national community: it is of no relevance what an English
court, for example, would have thought of the statement. It has been
suggested that the Tanzanian courts have been able to introduce the state
ideology of socialism into the law by virtue of this factor: for example, it has
been held to be defamatory to say that someone was anti-socialist. The
magistrate said
"... giving it the natural meaning of the words and in the context of the
sociological set up of our society epitomised in the embodiment of Socialism
and self-reliance, the charge that a reactionary leader has been exposed is
most revolting and defamatory".'56
Earlier this paper looked at situations in which the law of torts may play
a positive part in controlling abuse of power and corruption; the relevance
of defamation, especially libel, lies in its potential for stifling complaints, and
the key will lie in the question of defences. The African courts have adopted
the English rule and it is for the defence to plead justification. It has
succeeded in relatively few cases157 and in some cases damages have actually
increased in recognition of the fact that the defence has unsuccessfully
pleaded justification.158
The familiar rules on absolute privilege apply, though a brief attempt was
made to put them to a novel use in Nigeria in the 1970s, when there was a
vogue for making allegations against prominent figures by means of affidavits.
The Advisory Judicial Committee pointed out that no special privilege
attached to the statements because they were in the form of affidavits.r9
Privilege of this type attaches to courts. What about that very common
African phenomenon, the Commission of Inquiry, so often set up after, for
example, a change of government to look into the alleged wrongdoings of
the overthrown regime? It has been suggested that their capacity for affecting
the lives of people is so great that they too ought to attract absolute
privilege.'60 On the other hand, one might equally argue that those people
and bodies who do have such formidable powers are the very ones who
ought to some degree to be constrained by the possibility of being held liable
for their actions. As the legislation is either that of England, or is based on
the English law, it does not explicitly cater for military regimes, but a court
155 Bandele v. Daily Times [1974] 6 CCHCJ 755.

156 Heri Idd Ngungu v. Editor of Uhuru, Civil Case no. 33, quoted by R. Mtengeti, "Trends in
the Tort of Defamation in Tanzania" (1985) 6J. Media Law & Practice 47, at p. 48.
57 E.g. Visas v. Daily Times of Nigeria, above, n. 144.
158 E.g. Eyo v. Eastern Nigeria Information Service (1963) 7 ENLR 144, African Newspapers of
Nigeria Ltd. v. Coker [1973] NMLR 386.
59 Daily Times 11 and 18 September, 1974 and D. 0. Ewelukwa, "The Independence of the
Judiciary" (1977) 14 NBJ 38, 47.
160 A. 0. Sogbesan, "Coker v. Daily Times of Nigeria: A Tedious or Sagacious Exercise in
Timorous Justice?" (1971) 2 Nig. J. Contemp. L. 36.

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in Ghana held that a pronouncement of the supreme legislative body during

a military regime did in fact have absolute privilege at common law.'16
It is perhaps more often the defence of qualified privilege that will be
pertinent to allegations of corruption. Complaints to the police about
suspected offences or to the tax authorities about suspected tax avoidance
will have privilege.162 A letter of complaint to the Inspector General of Police
and various army officers to the effect that the plaintiff army officer had
come with soldiers to demolish the property of his neighbour, was privi-
leged.'63 There are, however, pitfalls in complaining, and it must sometimes
be difficult for a citizen to know to whom he or she may safely complain.
For example, a litigant was safe if he complained to the judiciary or the
Attorney-General about a lawyer, but not to the Inspector General of
Police. 64
There is little doubt that in the African context government is a greater
threat to the freedom of the press than the law of defamation. In many
countries the only news media are actually owned by the state, and even in
a country like Nigeria, which has 23 daily newspapers alone, many of which
are privately owned, the press is subject to banning and journalists have
been harassed by the agents of the state. Nevertheless, many of the defamation
cases are brought against newspapers.165 Where these can be privately
owned, they are often the organs of political parties, or at least closely
associated with particular parties or viewpoints. In Nigeria, at least during
periods of civilian government, many suits are brought by politicians against
newspapers of a different political persuasion.
Certainly the African courts have not shown themselves to be particularly
tender of the freedom of the Press. There is, for example, no equivalent of
the American case of Times v. Sullivan,166 where it was held that the first
amendment of the Constitution removed from public figures the protection
which the law of defamation gave to ordinary citizens-in the sense that
public figures must now prove malice. In one Nigerian case, Enahoro v.
Associated Newspapers,'67 the judge rejected an argument to the effect that
public figures ought to have thick skins. Under the next civilian regime, an
attempt was made to rely upon the 1979 Constitution: s. 21 (freedom to
uphold the "responsibility and accountability of the Government to the
people") and s. 36 (freedom of expression). To no avail: "There is no public
duty properly so-called which entitles news media to defame holders of
public office".168 Times v. Sullivan does not appear to have been cited. Like
any other citizen a newspaper may find it loses qualified privilege if it
published material which ought to have been disseminated to a more
restricted audience; a Zambian newspaper could not claim privilege for
reports of alleged corruption.169 The Nigerian Broadcasting Corporation
161 Attisogbe v. Harrley [1972] 1 GLR 194.
162 E.g. Rwekanika v. Binamungu [1974] EA 388, Economides v. S. Thomopoulos Ltd. & Co. Ltd.
(1956) 1 FSC 7.
163 Ajala v. Showunmi [1977] 1 CCHCJ 25.
164 Aghahowa v. Aguebor [1957] WRNLR 69.
165 Muburimusoke, op. cit. p. 172, n. 28 suggests that libel actions have proved too much of
a financial burden for at least one East African paper to bear.
166 376 US 254 (1964).
167 [1960] WNLR 219.
168 Onabanjo v. Concord Press of Nigeria Ltd. [1982] 3 Fed. of NLR 75, 92. It is perhaps not
surprising that under the military it was held "A newspaper has no greater privilege ... than
any ordinary person"-African Newspapers of Nigeria Ltd. v. Coker [1973] NMLR 386, 397.
6 Eastern Province Co-operative Marketing Board Ltd. v. Zambia Publishing Co. Ltd., Sel. Jnts. No.
24 of 1970.

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argued unsuccessfully that the fact that it was established by statute to

broadcast gave it a special privilege.'70 In one Zambian case the judge went
so far as to say:
"Zambian society is in a state of development, of much less sophistication
than that of England. Its two daily newspapers are in a very powerful position
by reason of the fact that many persons are ignorant of their rights and many
others are afraid to assert them. Daily newspapers ... are in a position to do
great good and great harm.""'7
In a Nigerian case the judge seems to have introduced a "public interest"
factor into the assessment of damages when he took into account what he
considered to be divisive elements in the publication. "No one has the right
to toy with the destiny of millions of people in the manner attempted in the
offending passages".
However, not all African judges have shared this nervousness of the press.
Some have viewed the press as playing an important part in the fight against
corruption. As JoHNSON, J., said in another Nigerian case:
"Corruption is comonly known in this country as one of the evils which the
Government . . . has set out to eradicate. It is within living memory that a
lot of actions had been taken by the Government in pursuance of this crusade.
The issue of corruption therefore can rightly be said to be a matter of wide
public interest in this country."'73
With respect, the learned judge seems to have allowed his enthusiasm for
crusading journalism to run away with him (for he held that the allegations
had been adequately proved by the plaintiffs silence!), but the point here is
that he did indeed have this enthusiasm. And a Tanzanian judge was
prepared to attach qualified privilege (which is not self-evidently the
appropriate defence) to a letter published in a newspaper on a matter of
great public interest and debate.
CONCLUSION
This article has not been in any sense a comprehensive review of the uses
to which the law of tort is being put in Africa-and still less of its success
in performing those roles. Major omissions are the protection of the
environment, the prevention of abuse of power through the tort of malicious
prosecution and the African family and the law of torts. Enough has been
said, it is hoped, to support the suggestion that the law of tort in Africa
deserves rather more attention than it has tended to receive.'76 It is already
170 Mukete v. NBC, above.
'17 Cobbett-Tribe v. Zambia Pub. Co. Ltd., [1973] ZLR 9, 21.
172 Awolowo v. West African Pilot, [1962] WNLR, 29, 40.
173 Tarka v. Daily Sketch [1978] 2 CCHCJ 263 (this arose from one of the affidavit cases, see
p. 159 above).
174 Maskini v. Rodrigue, [1975] LRT 65. A Tanzanian court held qualified privilege attached to
a Party newspaper for a report on the removal of a Party official: Ngungu v. Editor of Uhuru, see
Mtengeti op. cit. above n. 156.
'75 On this see, Cottrell, "The Urban Environment and the Law of Torts in Africa" (1983)
6 Urban L & Pol. 5.
176 Indeed, it is particularly interesting to contrast the position with that in India where there
is truly little tort litigation. (This seems to be partly due to the lack of a codified system of tort
law, and partly to a tradition of bringing criminal actions and claiming compensation under
the Penal Code). On this, see "Affidavit of Marc S. Galanter" in Indian Law Institute, Mass
Disasters and Multinational Liability: The Bhopal Case (New Delhi, 1986) p. 161.
177 B. B. Pande, "Foreword" to Gandhi, Law of Torts (1987).

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making some contribution to the compensation of road accident victims, and

to the victims of official abuse of power. It would be unrealistic to claim
more for it than compensation, for it cannot be the case that it is more
effective as a deterrent in Africa than, for example, in the United States, nor
has there been any significant indication of any innovative approaches to
liability. The most that can be said is that the law has served most of the
purposes that counsel have been able to suggest for it-but their imaginations
are clearly limited by the law they learnt themselves, and it is most
exceptional for any claim to be brought forward, so far as one can tell from
the law reports, which even threatens to break new ground. There are
undoubtedly some instances, of which this paper has simply given a few
illustrations, where even the limited role expected of it tends to be restricted
or thwarted by the technicalities and cultural peculiarities of the substantive
rules. And its role is undoubtedly the more limited by the virtual absence of
effective systems of legal aid in civil cases, which ensures that tort litigation
is even more of a rich man's pastime than, for example England. The man
in the African street or farm must litigate in other fora, and almost certainly
the damages he can claim will be less. This factor should not be overstated;
as we have seen, some of the plaintiffs (in road accident cases especially)
have been "ordinary citizens"-lorry or bus passengers, petty traders, a
security guard, to take a few.
One cannot, however, escape a sense that the law fails to deal with most
of the real issues of wrongs done in African society-and that it does so not
just because of legal technicalities, nor because of the lack of legal aid, but
because of fundamental characteristics of the law itself. An Indian writer
has lamented the inability of the law to provide any remedy for those failu
of government policy which have led to riots and consequent loss of life and
property for the poorer sections of the community, for example in the
aftermath of the assassination of Mrs. Gandhi.177 The tragedy of Bhopal
focused attention on the law of tort, suggesting the helplessness of the law in
the face of a large number of poor, unorganised victims. No clearer example
could be imagined of the risk of the "have-nots" coming out behind.'78
Although there is rather more tort litigation in African than in India'79
(except in the field of road accident compensation where the Indians have
set up a separate system of tribunals), it remains true that the law of tort in
Africa caters for the needs of the elite, and of commercial interests.
What is striking is not that the law of tort is different in Africa, but that it
is so much the same. There are instances where this is a question of a
somewhat unquestioning adherence to the details of the familiar, and
therefore very often English, case-law. But the question goes deeper than
this. Perhaps the very concepts on which the law is based ought to be
examined. The tort of negligence has at its core the notion that what is
required is care, not a guarantee. True, the enthusiastic use of the doctrine
of res ipsa loquitur?80 means that in many road accident cases, especially,
liability approaches the strict. But there is no exploration (in the courts at
178 See M. Galanter, "Why the Haves Come out Ahead: Reflections on the Limits of Legal
Change" (1974) J. Law & Soc. 131.
179 See Pande above, n. 178.
180 There are so many cases, not adding anything to the English cases that there seems little
point in citing examples. Veitch, op. cit., gives three East African cases (pp. 48-54) and among
the cases cited earlier in this paper Igbokwe v. UCH (n. 73) is a Nigerian example.
181 For an academic article on these lines seeJ. L. Kanywanyi, "Compulsory Motor Insurance
Scheme in Tanzania: the Need for a New Approach", [1971] 4 ENLR 35 and 91.

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least) of whether liability in this type of accident case ought perhaps to be

strict as a matter of course.'81
In nuisance, one of the fundamental and unquestioned assumptions of the
law is that the standard of unreasonable interference depends upon the
nature of the neighbourhood. This judicial zoning is playing a part (if only
a subordinate part since legislation is very much based upon similar
assumptions) in the structuring of African urban areas upon English,
essentially class divided, lines. The distinction between Berkeley Square and
Bermondsey becomes that between Palm Grove and Igbosere Road.'82
It is not enough to say that the law of defamation is indigenised by virtue
of the fact that injury to reputation is judged through Nigerian, or Tanzanian
or Zimbabwean eyes. The very idea that financial compensation should be
available for such injury to reputation should be subjected to examination.
Especially is it true of the size of the damages. One can see this from the
cases which come on appeal from customary courts where the measure of
damage is so much less. Indeed, it is instructive to compare the sorts of
damages awarded to members of the elite for injury to their reputations'83
with the low levels commonly awarded, at least until recently, for physical
injury.
It would not be right to suggest that the notion of monetary recompense
for injury is alien to African tradition, for in many communities compensation
rather than punishment was the standard remedy. It would therefore be an
oversimplification to suggest that the law of tort commodifies all values. But
on the other hand, that compensation does serve a purpose rather different
from that traditionally intended. Very often the payment of reparation was
an intrinsic part of a process of restoring relationships;'84 but common law
compensation is quite the opposite, for few relationships will survive intact
the process of litigation and the scale of damages which the common law
involves.
It would require both more research and more reflection to begin to decide
whether the law of tort has proved sufficiently adaptable that it masnifests
itself in different ways in different African societies, depending upon their
economic and social structures, their political philosophies and so on. The
superficial impression however is that this is not the case. The common law
seems to have a homogenising effect, and what happens in the High Court
of socialist Tanzania is very much what happens in the High Court of
essentially capitalist Nigeria.'85 To some extent this is no doubt a reflection
of the fact that the law is that of the elite and the position of the elite, despite
rhetoric to the contrary, is not so different in these countries. On the other
hand, it may also be that the law is one of the factors serving to make those
positions similar.
These thoughts go further than is supported by the essentially descriptive
182 Odugbesan v. Ogunsanya LD/354/67 decided 9 February, 1970 (unrep.), see A. 0. N. Ezeani,
Cases and Materials on Nigerian Law of Tort (cyclostyled, Eungu, nd), and a similar point is made
(with respect to Warri rather to Lagos) in Tebite v. Nigeria Marine and Trading Co. Ltd. [1971]
UILR 432.
183 E.g. Ogunbayo v. Duyile [1980] Og. SLR 143-N50,000 for managing director called "A
hoarder".
184 This comes out very clearly in, for example, P. Bohannan, Justice and Judgement among the
Tiv. London, 1957.
185 I must say I do not find Mtengeti's arguments (above n. 156) about the courts in Tanzania
and their "socialist" use of defamation very convincing; the actual decisions in virtually all the
cases she cites would surely have been the same anywhere else.

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nature of the material in this paper, the main thrust of which has been to
try to show how the law is being used in those African countries which have
"received" it as part of their legal heritage of colonialism.
Some Abbreviations
All NLR-All Nigeria Law Reports

CCHCJ-Cyclostyled Judgements of the High Court of Lagos
ENLR-Eastern Nigeria Law Reports
Fed. NLR-Federal Nigeria Law Reports
Fed. of NLR-Federation of Nigeria Law Reports
GLR-Ghana Law Reports
KHCD-Kenya High Court Digest
KLR-Kenya Law Reports
LLR-Lagos Law Reports
LRT-Law Reports of Tanzania
NCLR-Nigerian Commercial Law Reports
NLR-Nigeria Law Reports
NMLR-Nigeria Monthly Law Reports
Nig. Const. LR-Nigerian Constitutional Law Reports
Nig. WLR-Nigerian Weekly Law Reports
Og. SLR-Ogun State Law Reports
Oyo SHC-Oyo State High Court Reports
Oyo SLR-Oyo State Law Reports
SCNLR-Supreme Court of Nigeria Law Reports
SLJR-Sudan Law Journal and Reports
Sel. Jnts.-Selected Judgments of the High Court of Zambia
UILR-University of Ife Law Reports
ULR-Uganda Law Reports
WACA-West African Court of Appeal Reports
WNLR-Western Nigeria Law Reports
WRNLR-Western Region of Nigeria Law Reports
WSCA-Western State Court of Appeal Reports
ZLR-Zambia Law Reports
Zim. LR-Zimbabwe Law Reports

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The Functions of The Law of Torts in Africa

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The Functions of The Law of Torts in Africa

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The Functions of the Law of Torts in Africa

Author(s): Jill Cottrell

Stable URL: https://www.jstor.org/stable/745523

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Professor Allott observed nearly a quarter of century ago:

* Senior Lecturer in Law, University of Warwick.

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There is a dearth of judicial statistics in African countries, and we are

All cases 396 436 690 530

In Lagos over a two-year period9 there were 308 cases r

6 The case is Braun v. Mallet [1975] 1 GLR 81.

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no longer necessary to teach the law of tort in Africa by reference to such

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It ought to be the case that the law of tort is of almost no significance in

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a man who finds pleasure in injuring the feelings of his neighbours by

27 Wankajiwaa v. Wereduwaa [1963] 1 GLR 332.

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ACCIDENTS AND NEGLIGENCE

The overwhelming majority of negligence cases concern personal injury,

There are far mor

37 E.g. Okoh v. Olotu (195

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of recent cases in England, especially those concerned with damages, have

A partial, but only partial, explanation is the existence of Workmen's

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be taken as being outside the scope of his employment. It is common

73 Duclaud v. Ginoux [1969] 1 All NLR 26.

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common law cases-is the bailee liable in the absence of negligence?86 In

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TORT AND ABUSE OF POWER

108 Fodwoo v. Law Chamber & Co. [1965] GLR 363.

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the state in contract is contrary to the Constitution;16 one could equally

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conviction for contempt).127 Other sub-species of trespass to the person also

The principle in Lord Devlin's speech in Rookes v. Barnard'36-that

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139 Onyekwere v. Okwulehie [1966-7] ENLR 140.

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155 Bandele v. Daily Times [1974] 6 CCHCJ 755.

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in Ghana held that a pronouncement of the supreme legislative body during

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argued unsuccessfully that the fact that it was established by statute to

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making some contribution to the compensation of road accident victims, and

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least) of whether liability in this type of accident case ought perhaps to be

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All NLR-All Nigeria Law Reports

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