CONTENTS

1.)BATTERY
2.) ASSAULT
3.) FALSE IMPRISONMENT
4.) UNLAWFUL ARREST
5.) MALICIOUS PROSECUTION

6.) WILKINSON v. DOWNTON

7.) TRESPASS TO LAND
8.) TRESPASS TO CHATTELS

9.) CONVERSION
10.) DETINUE
11.) NUISANCE
12.) RYLANDS v. FLETCHER

13)Economic torts
14)vicarious liability

1.
BATTERY
Trespass to the person is actionable per se - No injury need be proved. Battery has
six constituent elements.
1.) A Direct Act
Scott v. Shepherd

2.) Direct act was voluntary - Defendant was in control of instrument causing harm
Gibbons v. Pepper

3.) State of mind of the defendants - Whether the defendants acted intentionally or
negligently
Stanley v. Powell
Fowler v. tanning

4.) Plaintiff must show that there was physical contact with the defendant
R.v. Cotesworth
Dumbell v. Roberts
Fagan v. Metropolitan Police Commissioner
Cole v. Turner

5.) Plaintiff must show lack of consent

Nash v. Sheen
6.) Plaintiff must show a positive act - that his complaint relates to something that
the defendant did and not some act of omission or failure on the part of defendant.
Innesv. Wiley

The case of Miller v. Attorney General satisfies all the elements.

1.) To succeed in an action in battery, you need to prove a direct act
Scott v. Shepherd
Facts: Defendant threw a lighted gunpowder squib into a covered market. The
squib was tossed from table to table and exploded in Sheperd's face, blinding him
in one eye Defendant argued that he had not caused the injury since he did not
throw the squib in the plaintiffs face. Critical thing was, did it cause injury Scott
suffered in the face?
Held: Court ruled for plaintiff. The squib was unlawfully thrown and
intended to frighten. All of these actions subsequent to the first loss of the squib
were a mere continuation to the final throw. Sheperd was liable for the injuries to
Scott because he intended the initial act and there was no break in the chain of acts.
Comments: This case introduced a substantive element, a directness test, to the
procedural requirements. This 'directness test' was adopted into common law and
used to expand what would become the law of torts.
Principle: "An intended damage is never too remote, that is when the act of a third
party is expected and instinctive. It has been argued that the intervention of a free
agent will mark a difference but I do not consider W and R as free agents in the
present case but acting under a compulsory necessity for their safety and
preservation. Directness in this case is relative. It isevident that the injury is not the
direct act of Sheperd but the decision rests on the fact that thea ction of the two
interveners was expected by the defendant and it being instinctive seemed as ifthey
had never acted at all."
Maitland: The forms of action we have buried but they still rule us from the grave.
Atkin: When the ghosts of the past stand in the path of justice, clanking their
medieval chains, the proper cause for the judge is pass through them undeterred.

Covell v. Laming
Facts: Plaintiff rode his ship against that of plaintiff in the Thames, and caused
injury. Defendant had tried to avoid it but failed. Defendant had not intentionally
caused the accident but it resulted from his ignorance and unskillfulness.
Holding: For a ship to ram another may be a trespass despite the effect of the
current. Lord Ellenbrough noted that first thing that must be proved is that
defendant had done a direct act of the defendant. Second thing that plaintiff must
prove is that this direct act was voluntary.

Leame v. Bray
Facts: Plaintiff complained that the defendant with force and arms drove and struck
a chaise which he was driving on the highway against the plaintiffs curicle, while
the plaintiffs servant was driving, by means whereof the servant was thrown out,
and the horses ran away, and the plaintiff who jumped out to save his life was
injured. Accident happened on a dark night owing to fact that defendant driving his
carriage on the wrong side of the road and not being able to see each other. But did
not appear that blame was imputable to the defendant in any other respect as to the
manner of his driving. Objected for the defendant that the injury having happened
from negligence and not willfully, proper remedy was by an action on the case and
not trespass vi et arm is.
Issue: Issue turned upon the question of whether the injury was immediate from the
defendant's act, or consequential upon it.
Held: This was an issue of trespass and not an issue of case. Remedy is trespass
and not case, the injury being immediate from the act done, though he were not
otherwise blamable than driving on the wrong side of the road in a dark night. The
distinction is that where the injury is immediate from an act of force done by the
defendant, the remedy is in trespass; where the injury is only consequential to an
act before done by the defendant, there an action on the case lies.
A remedy is trespass and not case when the injury is immediate from the act done
but where the injury is only consequential to the act done by the defendant, there
an action on the case lies. Trespass lies against one who drives a carriage against
another, whether done willfully or not.
2.) Plaintiff must prove that the direct act was voluntary - whether defendant was
incontrol of instrument causing harm.

Gibbons v. Pepper
Facts: Defendant was riding a horse. The horse got frightened and started running.
Defendant asked those in the way to get out. Plaintiff got ran over. Defendant tried
hard to avoid him but could not.
Held: Ruled in favor of defendant (Rider) It was not a voluntary action of the rider
so rider could not be held liable.
"For if I ride upon a horse and J.S. whips the horse so that he runs away over any
other person, he who whipped the horse is guilty of battery not me. But if I by
spurring was the cause of such an accident, then I am guilty. In the same manner, if
I take the hand of B and with it strikes C, A is the trespasser and not B."
3.) State of mind of the defendants - Acted negligently or intentionally (1888)
Stanley v. Powell
Key Principle: In addition to the act of interference, trespass requires proof of
either intention or negligence.
Facts: Defendant and several others were pheasant shooting in a party. Defendant
fired at a pheasant, the shot glanced off the bark of a tree and hit the plaintiff.
(Plaintiff was engaged in the job of carrying cartridges and game for the party.)
Held: Defendant not liable. A trespass to the person is not actionable if it be neither
intentional nor the result of negligence.
-In this case, the action was originally pleaded in negligence rather than trespass to
the personand the onus of proof undoubtedly lay upon the plaintiff and the jury
found out that the plaintiffhad failed to prove any negligence on the part of
defendant.

Fowler v. Lanning
Key Principle: In trespass to the person, the burden of proving negligence is on the
plaintiff. Facts: Neither intention nor negligence was alleged by the plaintiff who
was injured by a shot from the defendant's gun. He argued that in trespass the
burden of disproving negligence lay on the plaintiff and his statement of claim
merely recorded "the defendant shot the plaintiff."
Held: The statement of claim disclosed no cause of action, as the, onus of proof of
the defendant's intention or negligence lay on the plaintiff. The plaintiff should
either have alleged that the shooting was intentional or that the defendant was
negligent, stating the facts alleged to constitute such negligence.
Trespass to the person did not lie in if the injury to the plaintiff was caused
unintentionally and without negligence on the defendant's part, and this applied
whether the injury was caused on the highway or in any other place.
b.) That if negligence was a necessary ingredient of unintentional trespass, only
where the circumstances showed that the plaintiff had taken it upon himself the
risk of inevitable injury, the plaintiff today must be considered as taking upon
himself such a risk arising from any acts of his neighbor which in the absence of
damage to the plaintiff, would not in themselves be unlawful.
c.) That the onus of proving negligence, where the trespass was not intentional, lay
upon the plaintiff, who should plead and give particulars of negligence;
accordingly having failed to do so, the plaintiff’s statement of claim disclosed no
cause of action.
-If the accident had been unintentional and the defendant had committed no
negligence, hewould not have been liable.

Holmes v. Mather
Facts: The defendant's horses, while being driven by his servant in the public
highway, ran away and became so unmanageable that the servant could not stop
them but to some extent, guide them. The defendant who sat beside his servant was
requested by him not to interfere with the driving and complied. While
unsuccessfully trying to turn a corner safely, the servant guided them so that
without his intending it, they knocked down and injured the plaintiff, who was in
the highway.
Held: Even assuming the defendant to be as much responsible as his servant, no
action wasmaintainable for since the servant had done his best under the
circumstances, the act of allegedtrespass in giving the horses the direction towards
the plaintiff was not a wrongful act. Nobattery is committed if there is an incident
over which the defendant had no control.
Reason- Horses were not driven there by defendant's servant but they went there in
spite of him, so faras he directed them at all.
"Here I understand the case to be this; the master was not having the same capacity
formanaging horses and being perhaps alarmed and anxious to interfere, servant
says 'Leave it tome, do not take any part.' The master complies. That would
absolve him so far as any questionof personal negligence is concerned, and at that
moment, act of servant ceased to be act ofmaster.

Letang v. Cooper
Key Principle: Today the general principle is that direct intentional acts of
interference are dealt with by the tort of trespass. Where acts are unintentional and
indirect, the action lies in negligence.
Facts: Plaintiff was on holiday, sunbathing on a piece of grass where cars were
parked. While she was lying there, the defendant came to the car park driving his
Jaguar motor car. He did not see her. The car went over her legs and she was
injured. More than three years after the accident, plaintiff brought this action
against the defendant for loss and injury caused by
a.) negligence by defendant
b.) Commission by defendant of trespass to person.
Holding: Court ruled for defendant.
Under the Limitation Act 1939, period of limitation was 6 years in all actions
founded in 'tort' but in 1954 Parliament reduced it to 3 years in actions for damages
for personal injuries, provided that the actions come within these words of Section
2(1) of the Law Reform (Limitation of Actions etc) Act 1954; "Actions for
damages for negligence, nuisance or breach of duty where the damages claimed by
the plaintiff for the negligence, nuisance or breach of duty consist of or include
damages in respect to personal injuries to any person." The cause of action in this
case is negligence and not trespass.
4.) Plaintiff must show physical contact with the defendant

R. v Cotesworth
Facts: Defendant spat in plaintiff, a doctor's face.
Held: Spitum that came out of plaintiff s mouth was held to be an instrument.

Pursell v. Horn
Distinction drawn between what action is available to you when water touches
your skin,when water is thrown at you...It is only when water touches your skin
that you can claimbattery. If you pour it on someone but simply touches the shirt
and not the skin, it is notbattery.
Facts: Elizabeth cast and threw large quantities of boiling water on the plaintiff.
Held: There was a battery as it includes all cases where a party is struck by any
missile thrownby another (Per Lord Denman CJ)
Cole v. Turner
The least touching of another in anger is battery - Chief Justice Holt
2.) Facts: Turner committed assault and battery against Cole.
3.) Issue: Whether the least amount of touching, when done in anger, satisfies the
necessary element of battery.
4.) Held: Yes, if in anger, least amount of touching is battery. Harmful or
offensive conduct,even at the barest minimum is trespass of battery.

Agbovi v. Setordzi and others

Facts: Plaintiff damaged a fence situated on disputed land. Plaintiff voluntarily
appeared at the Police Station a few days later. Plaintiff was put into a cell and was
brutally beaten by three police officers.
Held: Case for plaintiff.
-Finds as evidence of malice failure of defendants to send plaintiff to Court when
he reported to the station, especially well aware he would have to cool his heels in
a Police cell for one week if he was not sent to Sogakope Magistrate's Court that
20th day. Refusal to grant bail where evidence of malice exists makes one open to
civil liability.
Damages assessed based on pain and humiliation suffered by the plaintiff, coupled
with the ferocity of the assault.
Francois: The police must be well aware that refusal to grant bail where evidence
of malice exists makes one open to civil liability.

Fagan v. Metropolitan Police Commissioner

Principle: Where physical injury from battery can be proved, aggravated damages
may be awarded.
Fagan is authority for principle that physical contact can be made through an
object.
Facts: Fagan drove his car onto the foot of a policeman. The policeman (Morris)
asked him to reverse. The appellant heard. Appellant said, "Fuck you, you can
wait." Appellant turned off engine or at least engine stopped running. Morris then
told appellant to get off his foot several times before he finally did.
Issue: Whether or not appellant can be said to be complete and spent at the moment
of time -when the wheel of car came to rest on the foot or whether his act is to be
regarded as a continuing act operating until the wheel was removed.
Held: Court ruled against plaintiff, Fagan. There was an act constituting a battery
which at its inception was not criminal because there no element of intention but
which became criminal from the moment the intention was formed to produce the
apprehension which was flowing from the continuing act.
-The decision seemed to bear that there was no act but an omission. There was no
intentional application of force but a failure to withdraw it. A more appropriate
charge would have been false imprisonment because the constable could not have
presumably moved while the wheel remained on his foot. This was a criminal
prosecution for assault that is in criminal law. In strict civil law sense, the trespass
to the constable was a battery.
5.) Lack of consent to the Physical Act

Nash v. Sheen
Facts: Plaintiff went to defendant's hairdressing salon and asked to have a
'permanent weave' in her hair. The defendant applied a tone rinse and not only
dyed the hair an unpleasing color but also provoked a painful rash all over her
body.
Held: Mrs.Nash went to the salon for permanent weave and his Lordship did not
believe that she consented to the applying of the coloring matter and that
constituted trespass. On the defendant's own count, it was evident that the plaintiff
never gave consent to the application of any dye or coloring matter to her hair.

Collins v. Wilcock
Key Principle: Battery is the actual infliction of unlawful force on another person.
Anyphysical contact, no matter how trivial, is sufficient "force."
Facts: The defendant and another woman who was a known prostitute were seen
by policeofficers apparently soliciting men in the street. The prostitute agreed to be
questioned while thedefendant walked away. The plaintiff followed to try to speak
to her but the defendant said sheshould "Fuck off." When the defendant persisted,
the defendant repeated, "Just fuck offcopper." The plaintiff then took hold of her
hand to restrain her and in the process the defendantscratched her arm with her
fingernails. Consequently, she was arrested and charged withassaulting a police
officer in the execution of her duty contrary to Section 51(1) of the PoliceAct,
1964.
Issue: The question for the Court was whether a police constable was acting in the
execution of her duty when detaining a woman against her will for the purpose of
questioning her regarding her identity and her conduct which was such as to lead
the police constable to believe she may have been soliciting for men.
Held: In allowing the appeal, that where a police officer sought to stop and
detain another person and without exercising his power of arrest, reinforced
hisrequest to detain that person with the actual use of force or with threat to use
force, the act of detention was unlawful.
ii.) Caution of a woman suspected of loitering for the purpose of soliciting men for
prostitution was allowed but there was no implied power upon police to stop and
detain for cautioning so the taking of the defendant's arm amounted to battery.
6.) Compliant must relate to something defendant did and not some omission or a
failure to act on behalf of defendant.
Innes v. Wylie
Facts: The plaintiff belonged to a society which purported to expel him, and a
policeman acting under the defendant's orders, stopped the plaintiff from entering a
room to attend a dinner of the society. The plaintiff brought an action for assault
and battery.
Held: That the expulsion was invalid. The policeman was liable for assault because
he was not passive in the doorway but took active measures to prevent him from
entering. The judge observed that if the policeman was merely passive like a door
or a wall to prevent the entrance of the plaintiff, then no assault has been
committed. On the other hand if the policeman took any active measures to prevent
the plaintiff from entering the room but not entirely stood in the doorway passive,
then there has been an assault.

PRIVELEGED CONTACT
Coward v. Baddeley
Principle: Touching without hostile intention is not battery.
Facts: The plaintiff touched the arm of the defendant, the superintendent of a fire
brigade, at the moment the defendant was engaged in directing the hose against a
fire for the purpose of calling his attention to an observation he was about to
address to him as to the manner in which the water was acting upon the flames.
The defendant gave him into custody for assault.
Issue: Whether mere touching of another is battery in point of law
Holding: The mere touching of another for the purpose of attracting his attention
does not mount to battery or assault.
Pollock C.B: "I am of the opinion that the mere touching ought to be discharged. It
has been found by the jury that what the plaintiff did in touching or pulling the arm
of the defendant was done merely for the purpose of calling his attention to
something he was going to say to him. It must be taken that it was not done with
that degree of violence that would justify the jury inputting another construction on
his act. The defendant treated it as an assault and gave the plaintiff into the custody
of a police constable. I think that is not an act that justified the defendant in giving
plaintiff into custody."

A.E. Cobbold v. G.C Grand

Facts: Plaintiff who is a member of an opposing political party secreted himself on
a verandah of queen mother’s palace in order to spy on a meeting and take notes of
what was happening. The defendant, an ASP of Police, pushed him and instructed
a constable to remove him.
Holding: Damages assessed at a light 5 pounds.
-If defendant honestly and on reasonable grounds believed that the presence of the
plaintiff endangered public order at the meeting, he could eject him from its
neighborhood. There was no reasonable ground for believing so, so defendant was
not justified. Defendant acted in goodfaith but from a mistaken view of his duty.
Damages assessed at 5 pounds and only such costsas can be recovered in
Magistrate's Court.

Wilson v. Pringle
Key Principle: Unless it is evident from the act itself, the plaintiff must show the
conduct to be hostile.
Facts: The plaintiff claimed damages for personal injuries suffered and loss and
expenses incurred as a result of a trespass to his person by the defendant, the
allegation being that the defendant had intentionally jumped on him and as a result
of this, he the plaintiff suffered injuries. The defendant denied liability claiming
that he had merely pulled the plaintiffs schoolbag off his shoulders in the course of
ordinary horseplay induced by plaintiff himself and as aresult of this he fell to the
ground and sustained injuries.
Held: On an appeal for judgment entered by the plaintiff, the appeal was held on
the groundsthat battery was an intentional and (hostile) touching of, or contact
with, one person by anotherand an intention by the assailant to injure the other was
an essential element in tort. Thatwhether a touching or contact was hostile was a
question of fact.
Where in an action for battery the immediate act of touching alleged does not itself
demonstrate hostility, the plaintiff should plead the facts that are said to do so.

Guarro v. U.S
Facts: Accused's touching of a policeman's genitals. This was in the context of a
homosexual invitation.
5.) Holding: Unless there is consent, it would seem that a sexual touching is a
sufficiently offensive act to constitute an assault.
-Recognized in Beausoleil that non-violent actions involving sexual misconduct
may constitute assaults. In such a case, a threat or danger of physical suffering or
injury in the ordinary sense is not necessary. The injury suffered by the innocent
victim may be the fear, shame, humiliation and mental anguish caused by the
assault.

Miller v. Attorney General

Facts: Plaintiff claimed 50,000 cedis as damages for the head and brain injuries he
suffered at the hands of one CO. Lamptey who was at that time a Chief
Superintendent of Police. Plaintiff was shot by Lamptey in front of Acquinas
Secondary School.
Held: Plaintiff was awarded a global figure for pain and suffering, loss of amenity
and loss of expectation of life. Having regard to all the matters stated (supra) and
to the fact that the plaintiffs permanent disability is estimated at 100%, an amount
of 24,000 cedis awarded. -Lamptey did not have any reasonable or probable cause
for suspecting that the plaintiff and Sadiku had stolen the kente cloth or had
committed any criminal.offence. The purported arrest and shooting were unlawful.
There was no justification whatsoever for the assaults and battery.
Comments: (Date-Baah Book)
"Agbovie and Setordzie and this case, all involving the police demonstrate
relationships between trespass to the person and maintenance of law and order. The
maintenance of public law and order is important but such order should not be
achieved at the cost of unnecessary interference with the security, dignity and
inviolability of the individual citizen."

2.
ASSAULT
Elements of Assault
a.) Direct Act (Scott v. Shepherd)
b.) Plaintiff must prove voluntary act (Gibbons v. Pepper)
c.) State of mind of the defendant, whether acted negligently or intentionally
(Stanley v. Powell, Fowler v. Lanning)
d.) Lack of Consent (Miller v. Attorney General)
e.) Positive Act, that is plaintiffs complaint relates to something that defendant did
and not some act of omission or failure on part of defendant (Innes v. Wylie)
f.) Imminent Threat and Ability to carry out threat (Stephens v. Myers, Read v.
Coker)
Stephens v. Myers
Key Principle: An assault requires no physical contact - it is essentially conduct
which causes the reasonable apprehension of an immediate battery.
It is not every threat, where there is no actual violence that constitutes an assault;
theremust, in all cases, be the means of carrying the threat into effect.
Facts: Defendant in this case is a typical trouble causer. There is a parish meeting
going on.
Stephen made himself insufferable and motion was brought to throw him out. The
motion was seconded. Stephen said he would rather throw the chairman out.
Stephen was moving towards him to carry the threat out. Only the intervention of
an individual sitting next to the Chairman prevented it. At the time, he was not near
enough for any blow he intended to reach the Chairman.
Held: The defendant was liable for assault, though when at that particular moment
the defendant was stopped, he was not near enough for his blow to take effect.
Tindal: It is not every threat where there is no actual personal violence that
constitutes an assault, there must in all cases be the means of carrying out the
threat. When the defendant was advancing at the time, in a threatening attitude to
strike the plaintiff so that his blow would almost immediately have reached the
plaintiff, if he had not been stopped, then though he was not near enough at the
time to have struck him, yet he was advancing with that intent. I think it amounts
to an assault in law. If he was so advancing that within a second or two he would
have reached the plaintiff, it seems to me there is an assault in law."
Court said that there must be the means.
-Judge said, "Question I would leave to you is whether he was advancing in a
manner that within a second or two and in a threatening manner would have been
able to carry out his threat." If so, that would have been enough to constitute a
threat.
Read v. Coker
Facts: Read is a private businessman. His business collapses and defendant buys
the business and puts him in charge of it, giving him a small allowance. Defendant
comes, and says Read has to leave the premises. Defendant gets his workers,
surrounds him, they start rolling up their sleeves and tell him if he does not leave
the premises, they will break his neck.
Held: Jervis notes that the facts clearly showed the defendant showed an intention
to assault and presents ability to carry the threat into effect. So judge says if you
look at the facts - rolling up of shirt sleeves - it is natural for plaintiff to think he is
going to be at the receiving end of a fight. Any threat of physical violence
according to Read v. Coker is an assault. In holding the show of force in that case
to be assault, Jervis said, "There must be a threat of violence exhibiting an
intention to assault, and a present ability to carry the threat into execution."

Blake v. Barnard
Evidence that gun had been pointed at plaintiff but no evidence that the gun had
been loaded. Court ruled that there was no assault.
Osborn v. Veitch
Facts: Defendant pointed a loaded gun that was only half-cocked and threatened to
shoot. Held: It was held to be an assault because cocking was only a momentary
thing.-That a threat to shoot a person coupled with the act of presenting a loaded
firearm at him although is half corked is in law an assault - that an imminent
violent act might follow the cocking of the gun. However, if there is no reasonable
fear there is no assault, example if thegun is pointed at the man behind his back.
-To point a loaded gun at half-cock at the plaintiff was an assault but this was
because there was "a present ability' of doing the act threatened."

Bruce v. Deyer (Road Rage case)

Facts: Plaintiff and the defendant are on the road driving. Plaintiff is in front of
defendant.When defendant wants to overtake, plaintiff goes into the middle of the
road. When there is anoncoming car, he signals that defendant should overtake.
Defendant puts headlights on high.Plaintiff stops suddenly and this forces
defendant to also stop. Plaintiff gets out of his car andwalks to defendant's car with
clenched fist. Defendant punches him. The plaintiff whose jaw isweak due to bone
disease suffers a serious fracture.
Defendant argues in defense that - plaintiff with clenched fist - there was a threat
tocarry out violence and the ability. The defendant argues that he was first
assaulted by theplaintiff and that his action was that of self defense.
Held: It was held that the defendant was justified in defending himself. That the
plaintiff in stopping his car and purposely blocking defendant's passage was
himself guilty of assault. The defendant used no more force than was reasonably
necessary striking only one blow and the law does not measure the nicety, the
degree of force necessary to ward off the attack. The plaintiff endangered the
defendant and his family's life and the defendant was highly provoked. The
plaintiff invited the treatment he received with full knowledge of his own physical
condition. Ferguson J: "The striking of a person against his will has been, broadly
speaking, always regarded as an assault. So an attempted assault is itself an assault.
So an attempt to strike another is an assault even though no contact has been made.
There need not be in fact actual intuition or power to use violence for it is enough
if the plaintiff on reasonable grounds believed that he is in fact in danger of
violence."

R. v. St. George
Where it was held that whether loaded or not, a pistol is a pistol and to point it
against someone is an assault.
Facts: Court considered whether by pointing an unloaded pistol, a common law
assault had been committed.
Held: Assault had been committed if the weapon had the appearance of being
loaded, thus causing fear and anxiety and the range was such that it would have
endangered life if it hadbeen fired.

Blake v. Barnard - Civil Court

R. v. St. George - Criminal Court
-Civil Court may say evidence in criminal court is sufficient.
-In civil court, authority is Blake v. Barnard while in criminal court, it is R. v. St.
George

Mortin v. Shoppee
Facts: Defendant chased plaintiff with a whip. Plaintiff ran away and was faster
than defendantand as such managed to escape by hiding in a garden and
subsequently sued the defendant forassault.
Held : Judge ruled that just to chase someone with an uplifted whip is an assault
because there isthe ability to cause harm. Chasing or running after a person or
obliging him to run away in agarden to avoid being beaten is an assault. There was
an ability to execute a violent physicalcontact though the plaintiff being faster ran
away from the defendant.

Whether Mere Words Constitues an Assault

Meade v. Belt
Facts: Plaintiff was reported as dealing in contraband goods. His house was
surrounded by a crowd, and there was singing of threatening war songs, and he
was asked to come out. He came out with a gun and fired into the crowd. The
bullet wounded one person and eventually led to his death.
Held: Court said that mere words cannot constitute an assault. His defense was that
threatening songs was threatening to him.
-Words in this case by themselves cannot constitute an assault. However the
surrounding of his house constituted an assault.
-That a civil trespass will not justify firing a pistol. Forcible possession of a close
and breach of the peace is more than a trespass; so is forceful invasion of another
man's house. A man is not authorized to fire a pistol on every intrusion or invasion
of his house. The law regards an attack on a dwelling in the night as equivalent to
an assault on a man's person. No words or singing are equivalent to an assault.
When a person is attacked, he is not justified in killing if less violent means can
avert the danger.
R. v.Wilson
Facts: Accused person is poaching and is surprised by game keeper. Accused
shouts tocolleagues, "Get out knives!" and tackles game keeper to the ground.
Held: In light of Meade v. Belt's case, here it was held that words "Get out knives"
constitutesan assault.
-A knife is important for causing harm so understandable that game keeper will
interpretpoacher's words in a way that would make him apprehensive.
-Main thing from R. v. Wilson is whether the words are just 'mere.- An assault
with the intent to evade arrest is simply one of aggravated assault, that is, it is an
assault with circumstances of aggravation to allow a heavier sentence to be passed
for a simple assault.

Tuberville v. Savage
Words can negate a gesture that would otherwise have amounted to an assault.
Key Principle: Where the plaintiff had no reasonable belief that the defendant has
the intention to carry out the threat immediately, no assault is committed.
Facts: In this case, defendant put his hand on his sword and said, "Were it not
assize time, I would not have taken such words from you."
Held: Gesture of touching his sword would amount to an assault, but he had
accompanied hisgesture with words.
-Here, it was said that though the gesture amounted to an assault, his words
negated the gesture.
 3.
FALSE IMPRISONMENT
False Imprisonment
1.) The act complained of must be a direct act.
2.) Direct Act was voluntary
3.) State of mind of the defendants - whether they acted intentionally or negligently
4) Plaintiff must show lack of consent to the interference
5.) Plaintiff must prove Positive Act-Not doing is not trespass

6.) Imprisonment must be total (Bird v. Jones)

Damages
7)Actionable per we

False Imprisonment: Submission to Control May constitute false imprisonment

Amadjei and Others v. Opoku Ware
Facts: Two policemen on normal patrol duty were informed by the Kwabenghene
that the 5 appellants were holding unlawful meetings and should be arrested. The
policemen went to one of the appellant's house where on their orders, the other 4
joined them. Respondent arrived and demanded their arrest - One of the policemen
said, "You are under arrest." The appellants were taken by the police to
respondent's house and were followed by a large crowd. At the Ahenfie,
respondent could not really level charge and appellants were allowed to go home.
Holding: Each plaintiff awarded damages.
-Appellants had been unlawfully arrested. Respondent went beyond role of a mere
informer. In the first place, he made a false complaint against the appellants and
the complaint he made was either false or recklessly made. Constable obliged to
act as he did.
On the issue of arrest, evidence showed that the appellants were arrested and
detained by the police and had suffered restraint of liberty sufficient to support an
action by false imprisonment.
Justice Crabbe: “The learned judge (earlier judge) failed to appreciate the legal
meaning of arrest in a case for false imprisonment...One important element in an
arrest is an imprisonment or the total deprivation, however brief, of the liberty of
another without lawful excuse or justification." -There is an arrest if a police
officer makes it plain to someone that he cannot go out of the presence or control
of that officer (Cited the case of Warner v. Riddiford) -An arrest is malicious in the
sense that it is made without reasonable or probable cause. -A person who is
arrested without a warrant is entitled to know as soon as is reasonably practicable,
that he is being arrested and also the grounds for his arrest. If the arresting officer
fails to inform the suspect accordingly, the arrest would be unlawful, unless the
arrested man is caught red-handed and the crime is patent to high heaven. Thus in
Notes:Clark and Lindsell on Torts (Page 289): "A false imprisonment is complete
deprivation of liberty for any time, however short, without lawful cause."
Also on Page 293, "If the arrest or trespass is effected by a purely ministerial
officer and not under the authority of any court, the defendant must be clearly
answerable if he in fact authorized the act in question. It is not necessary that he
should in terms have made a request or demand; it is enough if he makes a charge
on which it becomes the duty of the constable to act. But it is quite a different thing
if a party simply gives information, and the constable thereupon acts according to
his own judgment. In such a case, the former incurs no responsibility."
Bird v. Jones
Key Principle: False imprisonment does not require incarceration or the use of
force but the unlawful constraint on another's freedom must be total.
Facts: To create a place where people wanted to watch a boat race, defendant
blocked part of a bridge. Plaintiff wanted to pass and was not allowed. He sued for
false imprisonment.
Held: The case failed because his freedom of movement was not restricted in every
sense. It was not total. Because the plaintiff had some opportunity to leave the
place, it was not imprisonment.

Narwu v. Armah and Others

Facts:Respondents as plaintiffs brought in an action against appellant claiming
damages for causing them to be falsely imprisoned by making a false report to the
police that the plaintiffs are subverters," that they threatened to destool the
paramount chief and had collected funds for that purpose.
Holding: Allows appeal and sets aside judgment of the High Court and also,
damages awarded against the appellant by the Magistrate's Court.
-Respondent failed to prove actual direction or authorization. The appellant's
complaint was mere information given to Corporal Appiah who recorded it in the
station diary. Corporal Crabbe was instructed to investigate the matter and he in
exercising his discretion as a police officer invited the respondents to the police
station for questioning. There is no ground forliability to be incurred by the
appellant.
Malice: Malice cannot be the ground for an action in trespass that is false
imprisonment. A man may indeed be liable in an act of malicious prosecution if he
has wrongfully set the law inmotion... but he cannot be sued in an action of
trespass, which is the remedy for a direct andimmediate wrong.
Submission to Control May Constitute False Imprisonment
Warner v. Riddiford
Facts: Defendant, owner of a beerhouse, put plaintiff in charge to carry on business
as his servant at weekly wages, with an agreement for a month's notice to
determine the service. Having giving him a week's notice, defendant made up the
account and required the plaintiff to pay him the balance. Plaintiff refused on the
grounds that he had not received the stipulatedmonth's notice. When officers were
brought in, plaintiff attempted to go upstairs but was notpermitted to do so and
ultimately, only allowed to go upstairs when accompanied by an officer.Officers
took plaintiff into custody after asking him if he should take him in - not clear how
heanswered.
Held: Court held that this was an arrest because it was meant to be conveyed to the
mind of the plaintiff that he should not go out of the presence or control of that
officer.

Agyeman Badu v. Nana Kwesi Ababio III

"There is the evidence both by the plaintiff and his first witness and the evidence
of the defendant that the plaintiffs first witness did not lay his hands on the plaintiff
and that the plaintiff went on his own violation, riding on his bicycle to the Police
Station. The plaintiffs first witness however gave an interesting piece of evidence
under cross examination as to how the plaintiff went into the car which took them
lo Sunyani and I quote his evidence; "Plaintiff did not go to Sunyani on his own
free will. It was because the defendant had accused him."
-Judge: The position of the law as I understand it is that an arrest exists irrespective
of the absence of the touching of the suspect. Mere invitation by a constable to a
suspect to come to the police station and being near to see that the suspect went to
the police station in my opinion constitutes an arrest."

Herd v. Weardale, Steel, Coal and Coke Company

Facts: Plaintiff and a number of colleagues worked in an underground mine. They
worked 8hour shifts. They entered into the mine with a lift and after 8 hours were
brought back up. They had a disagreement with their employer and laid down their
tools. The employer refused toallow them to use the lift to go back up and forced
them to stay for the 8 hours before beingallowed to go up. Defendants based their
action on false imprisonment on the failure of thedefendant to allow them
gratuitous use of lift.
Held: The employer was under no obligation to facilitate their departure from the
mine and thatit was not false imprisonment.
Buckley LJ: "But it is true to say that the defendants compelled the plaintiff against
his will toremain in the mine and imprisoned him. To my mind it is not. It is true
that he could not leavethe place but he was detained by a certain physical difficulty
arising from the situation of theplace, a difficulty which the plaintiff was
contractually entitled to call upon his employers toremodel for him at that time, but
not at that time."
-In refusing this request, the defendants committed no breach of contract: their
contractualobligation was to transport him to the surface at the end of his shift.
-This case is authority for the proposition that failure to provide a means of egress
frompremises is not a tort when there is no duty to provide it: thus if A falls down
the mine of Bwhile trespassing it is not false imprisonment should B refuse to
bring him to the surface in hislift.
Commentary:
An alternative explanation for this decision is that there was no positive act to
restrain theplaintiff and trespass does not lie for mere omission.

Appiah v. Mensah
Facts: The first defendant lodged a complaint against the plaintiff for breach of
contract with the special writ and the defendants (soldiers) were sent to arrest the
plaintiff. On arrival the first defendant pointed him out, and he was arrested, put
into a car and kept in a cell. He brought anaction for unlawful arrest and false
imprisonment.
Held: That the first defendant never left the soldiers to act independently. He
actually participated in the arrest of the plaintiff. However slight the trespass was, a
right to recover at least nominal damages existed. Even where there had been no
physical injury, damages would be awarded for injury to a man's dignity or for
discomfort or inconvenience.
Justice Sarkodee:
False imprisonment is deprivation of liberty however short so far as it is without
lawful excuse

Herring v. Boyle
Facts: Small boy was enrolled in a school. He had an arrears of fees. The head of
school refused to allow his mother to take the boy home at the end of the term
unless the fees were paid. The boy was allowed to leave only after the mother used
habeas corpus. The mother later sued for false imprisonment. The boy was not
aware that he had been 'imprisoned,' that he could not leave if he had wished to do
so.
Held: That if he was unaware, there was no false imprisonment.

Meering v. Graham White Aviation

Key Principle: Knowledge of the restraint at the time is not necessary to succeed in
anaction for false imprisonment.
Facts: In an action for false imprisonment, it appeared that the plaintiff who was
employed bythe defendant company was suspected of theft. He had complied with
a request to go to theoffices of the company at 9pm" as the police had directed his
employers. He was kept in awaiting room by some employees on the explanation
that his evidence was needed in connection with some thefts. While he remained in
the waiting room, 2 employees kept watch at the entrance, while one informed the
police that "we have got him at the office." The police arrived a while later,
arrested him on charges of stealing.
Upon being acquitted, the plaintiff sued the defendant company for damages for
false imprisonment, specifically claiming that by the police. However attention
was directed towards the action of the employers whether it amounted to false
imprisonment, that is detaining him before the arrival of the police.
Held Mere invitation by policemen to the plaintiff to enter a waiting room whilst
the policemen remained outside was held to constitute arrest and false
imprisonment.
Lord Atkins: This tort is also meant to protect our belief in that freedom of
movement.
Lord Atkin: It appears to me that a person could be imprisoned whiles he is asleep,
while he is in a state of drunkenness, while he is unconscious, and while he is a
lunatic... Of course the damages might be diminished and would be affected by the
question whether he was conscious of it or not."
According to Street: Herring v. Boyle is to be preferred to the Meering case.
Conversely, on principle, it would seem that if the plaintiff reasonably but
mistakenly believes himself to be confined and the defendant has intentionally
placed him in that position, there is false imprisonment.
-The decision in Murray v. Minister of Defense appears to be the prevailing view
on consciousness or otherwise of imprisonment.

Murray v. Minister of Defense

Facts: Officers were instructed to arrest the plaintiff. They entered the house and
asked the plaintiff to get dressed and 30 minutes later they told her that she had
been arrested. She was sent to a center and questioned and then released from
custody. She sued the defendant for false imprisonment and trespass alleging that
she had been unlawfully imprisoned for 30 minutes before being told of her arrest.
Held: That the failure to speak about the arrest earlier had not rendered the
plaintiffs arrest unlawful and that she had not been falsely imprisoned as a result of
the delay in communication.
NB: It is not an essential element of the tort of false imprisonment that the plaintiff
should be aware of the fact of denial of liberty.
Articles written by Date-Baah, Article of the Constitution and the tort of false
imprisonment (1970) resolved the question of Meering and Herring v. Graham
White that consciousness is irrelevant. The issue is debatable in our law today, but
consciousness is favored by some judges. Lord Atkin and some commentators are
of the view that if consciousness is a condition for false imprisonment, then
people's rights would be eroded when they are asleep, drunk or insane, in which
case they cannot appreciate the situation.

Onogen v. Leventis and Co.

Facts: Onogen was a store keeper of Leventis and Co. Ltd. The general agent of the
company in written and oral statements to two officials accused Onogen of having
stolen 70 cases of Heineken beer. Onogen, in consequence of this, was arrested by
the 2 officers. He was detained and put in a cell and released on bail. He was later
acquitted. Arrest and detention were at the instance of the company, and being
without any legal justification was unlawful.
His subsequent prosecution (as he alleged) was also at instance of company.
Because it was malicious and without reasonable and probable cause, he claimed
damages for malicious prosecution. Company denied any direct accusation or
preferment of charge. All agent did was to give information and request
investigation into the matter.
Holding: Did not find that the defendant-company's agent authorized, demanded or
requested the arrest or taking into custody of the plaintiff in such a manner as to
make him or his principals legally answerable for such arrest. Court dismissed
action for malice because the court was satisfied that no malice existed.
Reasons: He acted within strict limits defined by Scoble viz "not going what he
believed to be correct information to the police."

Austin v. Dowling
Facts: The defendant wished to charge the plaintiff with felony. The inspector on
duty at thepolice station told the defendant that he (the inspector) would accept no
responsibility for thedetention of the plaintiff unless the defendant signed the
charge sheet. The defendant did thisand the plaintiff brought an action against him
for false imprisonment.
Held: The action would lie as it was the defendant's act that caused the plaintiff to
be kept incustody.
Willes J: "It is clear that there is some evidence of false imprisonment. It is found
in the casethat though the defendant gave no express direction for the plaintiffs
detention, he wasexpressly told by the Inspector on duty that he (the Inspector)
disclaimed all responsibility inrespect of the charge and that he would have
nothing to do with the detention of the plaintiffexcept on the responsibility of the
defendant, and that the Inspector would not have kept theplaintiff in custody unless
the charge of felony was distinctly made by the defendant. Thesigning of the
charge sheet with that knowledge, therefore, was the doing of an act whichcaused
the plaintiff to be kept in custody.

Gosden v. Elphick and Anor.

Facts: Plaintiff and two others were involved in showing a horse around a fair. The
halteraround the neck of one of the horses slipped, and the horse ran against and
injured a child. Aconstable not present at the incident came along and was taking
one of the men into custodywhen defendant Elphick said, "That is not the man,
that's the man" and pointed to plaintiff. Thelatter was then taken into custody, and
was prosecuted unsuccessfully. He now sued for falseimprisonment.
Held: Jury found Elphick not liable because he was seen as merely offering himself
as awitness and to give information to the Constable as opposed to directing the
Constable to takethe plaintiff into custody in which case he would have been
liable.

Rowe v. London Pianoforte (1876)

Judge referring to Grinham v. Wiley said, "It has been held in the Court of
Exchequer that even signing the charge sheet is not sufficient enough to establish
trespass. There must be an actual giving into custody."

Sewell v. National Telephone Company Limited (1907)

-This case put it completely beyond doubt that the mere preferring of a charge is
not sufficientper se to support a claim for false imprisonment.
-In this case, the plaintiff had been taken into custody and the defendant's agent
attended at thePolice Station. At the request of the Police officer, the agent signed
the charge sheet. It was heldthat the fact per se (that is the preferring of the charge)
was not sufficient to support a claim in false imprisonment.

Grainger v. Hill
If a writ or warrant for a man's arrest is exhibited to him and he thereupon for the
time submits himself to the orders of the officer executing it, he becomes a
prisoner though his person be never touched.

John Lewis & Co. Ltd. v. Timms

Facts: In a certain shop, a daughter was seen to put four calendars into a paper bag
carried byher mother. After they had left the premises, two store detectives brought
them back to theshop, by which time they knew for which crime they were
being'arrested, and detained them toawait the decision of the managing director as
to whether to prosecute and, in view of hisdecision, the arrival of the police. The
daughter was tried and convicted but the charge againsther mother was withdrawn.
The mother claimed damages for false imprisonment in respect ofher detention for
the period between being arrested and charged.
Held: Her action would fail as she had been taken, before a justice of the peace or a
policeofficer as soon as was reasonably possible.
 4
UNLAWFUL ARREST
For an unlawful arrest to occur,
-There must be an arrest
-Arrest must be unlawful

Arrest by Police Officer Without Warrant (Criminal Procedure Code") Section

10(1)
A police officer may arrest without warrant any person who
a) Commits any offence in his presence
b) Obstructs a police officer in the execution of his duty
c) Has escaped or attempts to escape from lawful custody
d) Has in his possession any implement adapted or intended for use in
unlawfully entering any building, and who gives no reasonable excuse for
possession of it.
e) Has in his possession anything which may be reasonably suspected to be
stolen property.

Section 10(2)
A police officer may arrest without warrant any person whom he suspects upon
reasonable grounds
a) of having committed an offence
b) of being about to commit an offence where there is no other practicable way
of preventing the commission of the offence
c) of being about to commit an offence where he finds such person in any
highway, yard, building or other place during the night.
d) of being a person for whom a warrant for arrest has been issued by a Court
e) of being a deserter from the Armed Forces
f) of being concerned in any act committed outside Ghana, which if committed in
Ghana, would have been punishable as an offence, and for which he is, under any
enactment, liable to be arrested and detained in Ghana.

12(1); Arrest by Private Person Without Warrant

12(1): A private person may arrest without warrant any person who in his presence
commits,
a) Any offence involving use of force or violence.
b) any offence whereby bodily harm is caused to a person.
c) any offence in the nature of stealing or fraud.
d) any offence involving injury to public property.
12(2) A private person may arrest without warrant any person whom he
reasonably suspects of having committed any offence mentioned in subsection (1)
provided that an offence of that nature has been committed.

Christie v. Leachinsky
Principle: It is a condition of lawful arrest that the arrested party should know on
whatcharge or suspicion of what crime he is arrested...and just as a private party
arresting onsuspicion must acquaint the party with the cause of his arrest, so must a
policeman inarresting without a warrant on suspicion state at the time (unless the
party is alreadyacquainted with it) on what charge the arrest is being made or at
least inform him of thefacts that are said to constitute a crime on his part.
-Even if circumstances exist that may excuse this, it is still his duty to give the
informationat the first reasonable opportunity after the arrest.
Facts: On August 13th 1942, the appellants who were Liverpool police officers
arrested therespondent at his warehouse without a warrant. At the time, they
suspected and had reasonablegrounds for suspecting that he had stolen or
feloniously received at Leicester a bale of clothitems in the warehouse, professing
instead to arrest him on a charge of unlawful possessionunder the Liverpool Act
though in the circumstances, the Act admittedly gave them no power toarrest
without warrant. The respondent was taken to the police station and was detained
incustody until the following day when he was brought before the magistrate on
the charge ofunlawful possession. Remanded in custody.
Held: Simon made it clear that a citizen is entitled to know on what charge or on
whatsuspicion of what crime he is seized. If the citizen is not so informed but is
nevertheless seized,the policeman, apart from certain exceptions, is liable for false
imprisonment.
-The case of Christie v. Leachinsky fits Section 7 of the Criminal Procedure Code
in that anotification of the substance of warrant must be given. Section 7, reads,
"Except where theperson arrested is in the actual course of the commission of a
crime or is pursued immediatelyafter escape from lawful custody, the police officer
or other person making the arrest shallinform the person arrested of cause of the
arrest, and if the police officer or other person isacting under the authority of a
warrant, shall notify the substance thereof to the person to be arrested, and, if so
required, shall show him the warrant."
What Section 7 of the Criminal Procedure Code means is that unless the person is
caught inflagrante delicto, in which case there is no requirement to give reasons for
the arrest, the police officer or the other person effecting the arrest must assign
various reasons for the arrest. The requirement that if one is caught in the act red
handed no reason should be assigned probably sins against Clause 2 of Article 14
of the 1992 constitution that, Act 14(2): "A person who is arrested, restricted or
detained shall be informed immediately in a language that he understands of the
reasons for his arrest, restriction and detention and of his right to a lawyer of
choice.*'

Yaw v. Cobbina
Facts: The plaintiff was the Chief of Yamfo (near Sunyani). He was destooled by a
noticepublished in the Gazette, Nov. 1958, in substitution for another chief who
was to takepossession and make an inventory of the stool property. The plaintiff
destooled chief had hiscaretakers ejected by the new chief. The plaintiff reported
the incident to the police at Kumasiand alleged that he was surrounded by police,
manhandled and forced into a police vehicle atYamfo and forced to surrender stool
property to Baama II. He alleged further that when theinventory was not
completed, he was forcibly put into a police vehicle and taken to SunyaniPolice
Station where he spent a sleepless night on a hard bench. He completed the
handing overthe following day but alleged that no reason was assigned for his
detention. He claimed that hehad been under unlawful arrest and imprisonment.
The defendants denied and averred that thedetention of the plaintiff was in
connection with an offence committed in their presence,namely, hindering Nana
Baama II in the exercise of authority vested in him by the Gazettenotice.
Held:i.) From the time plaintiff arrived at the police station until he was taken to
Sunyani, theevidence disclosed no unlawful arrest or false imprisonment. The
plaintiffs evidence ofmaltreatment was uncorroborated and the police presence of
the handing over was justified bythe tension in the town.
ii.) The arrest of the plaintiff at Sunyani was in consequence of his refusal to hand
over theblack stools.
iii.) In the circumstances he ought to have known the reason for his detention and it
was notnecessary for him to be held.

AsumaniBugembe v. Attorney General'

Facts: During a problem in the shop, the police were sent for. Plaintiff and his
friends beat up the police and reinforcements were sent for. Plaintiff subsequently
arrested. He brought action claiming that he was not told reasons for his arrest.
Held: He failed. Where the person is caught in the act then there is no need to tell
him reasons for his arrest.

Walters v. Smith and Sons Ltd.

This case tells you that if you are wise you will not arrest yourself but will report to
a police officer. The restriction on the citizen's right to arrest a suspect, namely that
the arrestable offence has actually been committed, stems from this case.
Facts: Plaintiff worked with defendant, a bookseller. Defendant realized that there
was pilfering taking place. The manner in which it was taking place, the defendant
was convinced that it was one of his employees. He marked some of the books.
Plaintiff was also running his own bookshop with his wife. One of the company
employees went to the plaintiffs bookstore and found one of the marked books. He
had plaintiff arrested. Plaintiff said he took the book but he intended to pay and
there was no mensrea. Plaintiff was acquitted and he sued, bringing a case for
malicious prosecution and false imprisonment.
Held: Ruled in his favor. Chief Justice Ruthfield said that not only must the
suspicion be reasonable but the offence must have in fact, been committed.

Asante v. Republic
Facts: Upon a complaint by Abena, a schoolgirl, that the defendant had assaulted
her, apoliceman was detailed with her to invite the appellant to the police station.
They met theappellant at the canopy of his lorry discharging goods. The constable
showed his identity cardbut refused to tell the appellant reasons why he was
wanted. The appellant refused to go withthe policeman to the police station and his
key was seized. In attempts to retrieve the key, theappellant knocked down the
police constable, and kicked and dragged him, injuring him anddamaging his
trousers. The appellant was convicted of assault to a policeman and causingdamage
to his attire. On appeal, counsel for appellant argued that the arrest was unlawful.
Theappellant was therefore justified in repelling it with corresponding force of
self-defense.Allowing the appeal.
Held: C.P.C. 1960 (Act 30) Section 10 a. empowers a police officer to arrest
without a warrantany person whom he reasonably suspects of having committed a
crime but the person to bearrested must first have been put under lawful arrest. As
the police officer failed to put theappellant under lawful arrest by informing him of
the cause of the arrest, he wasn't executinghis legal duty but was committing
assault by imprisonment on the appellant by confining him tothe area bounded by
his vehicle.
2.) The police officer first committed the prior assault of imprisonment in refusing
to leave thespot and giving the key to the appellant, which was not an integral part
of the arrest.
3.) The appellant was justified in using corresponding force in self defense in
repelling theunlawful assault and arrest.
Anterkyi J: The liberty of every individual is protected by the law until he acts in
contravention of the dictates of the law to entitle a police or peace officer to
interfere with his liberty by exercising against him the powers with which the legal
officer is legally clothed. The officer in interfering with the individual's liberty in
these circumstances must act strictly within those legal powers, otherwise he
commits a trespass to the person of that individual." "And if the first prosecution
witness merely told the appellant that he was wanted at, or being invited to the
police station, the appellant was not legally obligecj to go there for a mere chat." -
Under Ghana law, no one is under any obligation to go to the police station to
converse with a police officer.

Plaintiff arrested by Police as a result of a deliberately false complaint by

Defendant Yaw v. Bekoe
Tandoh v. Adu

Yaw v. Bekoe
Facts: Plaintiff claimed damages for unlawful arrest and imprisonment. The
evidence showedthat the second defendant maliciously and falsely pointed out the
plaintiffs to the police ashaving taken part in a fight. None of the plaintiffs had
taken part in a fight but in consequenceof the second defendant's action, the
plaintiffs were arrested by the police and imprisoned forseveral hours.
Holding: Court ruled for plaintiffs.
The Divisional Court held that although the second defendant did not authorize or
direct thepolice to arrest or imprison the plaintiff, it was in consequence of his
action that the plaintiffswere wrongfully arrested and imprisoned and he was
therefore liable to the plaintiff fordamages.
Aitken J: "Nevertheless, from a commonsense point of view, it seems to me that a
man whodeliberately gives false information about another with intent to get him
into trouble, andthereby succeeds in getting him arrested and imprisoned should
not be protected by the law incases where that arrest and imprisonment are wholly
wrongful; the law is surely not an ass asthat!"

Tandoh v. Adu
Facts: Plaintiff alleges that the defendant made a consciously fake complaint of
theft against him to the police. As a result the police arrested him and detained him
for a number of hours. He sued the defendant for damages for assault, wrongful
arrest and false imprisonment.
Held: Claim dismissed.
-Judge Apaloo made it clear that what was important was that the defendants
neither directed nor authorized the police to arrest the plaintiff although it seemed
plain that the arrest and detention of the plaintiff was the natural and probable
consequence of the defendant's false and malicious complaint.
Note: In both Tandoh v. Adu and Yaw v. Bekoe, the false information which led to
the arrest by the police was known to be false by the accuser.

Etuk and Another v. Kusi

Extract from Justice Apaloo's judgment
"The well-established rule of law is that if the police act under the direction or
authorization of the defendant, he is liable, but if the latter merely gave information
and the police in their judgment arrest and detain the plaintiffs, the defendant is not
liable.
.. .Iam not able to find any evidence of malice on his part on the facts of this new
case. All that he seems to have done was to give the police a factual account of
what he believed took place. He may have been mistaken about his belief about
leaving money on the counter...but on the whole the defendant did no more than
express his opinion. He had no control over the police who said what they did upon
receiving the defendant's complaint was routine and in the exercise of their
discretion...In my opinion, this case is not distinguishable from Danso v. Oteng
where it was held on a much stronger case for the plaintiff that the defendants were
shielding themselves behind the police and were entitled to do so. It is a clear case
of damnum sine injuria. The plaintiffs case fails and is dismissed."

Danso v. Oteng
Facts: On complaint of first and second defendants, plaintiff was arrested and
detained for anumber of hours, with the complaint being that the plaintiff had
misappropriated proceeds fromstool farms.
Held: The first and second defendants cannot be held responsible for the arrest and
detention.
Coussey J: "The first and second defendants are entitled to say that they only plead
the matterbefore the police for investigation. They shield themselves behind the
police. There is noconclusive evidence to show that they so influenced the third
defendant, Inspector Abeka, thathe acted under their direction or authorization..."
Comments:The Court of Appeal differed from the trial judge, Korsah J. They
expressed themselves assatisfied that the defendants did not act in good faith.
However, neither the conscious falsity ofthe report nor the mala fides of the
defendants weighed with the Court of Appeal. What theyconsidered important was
the fact that the defendants neither directed nor authorized the policeto arrest the
plaintiff although it seemed plain that the arrest and detention of the plaintiff
wasthe natural and probable consequence of the defendant's false and malicious
complaint.

Arrest Consequent Upon False Report to The Police

Adejumo v. Abegunde and Another
Facts:Plaintiff was a Nigerian petty trader carrying on business atNalerigu in
Northern Ghana.On 14th October, 1963, he boarded a vehicle bound for Nalerigu.
On that vehicle were.passengers including JueilIsola and the co-defendant who was
the driver's mate. Plaintiffalighted and dropped certain papers and as he picked
them up, co-defendant came up to him andaccused him of picking a letter he had
dropped from his pocket.
Holding: Not only have the defendants failed to justify their actions against the
plaintiff, but thelatter has succeeded in proving that he is entitled to relief.
-It is beyond doubt that the plaintiff was in fact arrested and detained at Gambaga
PoliceStation.
b.) Evidence also shows that the plaintiff was arrested without a warrant, that when
he wastaken to Gambaga Police Station, the defendants were unable to substantiate
the charge whichthey made against him and that the plaintiff was detained in a cell
in order to enable evidence tobe collected against him. But it is not lawful to detain
a man without warrant whilst evidenceagainst him is being collected.
c.) If a person states facts to a police officer and the latter acting on his own
initiative arrests theperson implicated, no trespass is committed by the person who
gives the information to thepolice officer.
But in the instant case, both defendants had something to do with the arrest and
detention of the plaintiff. Indeed, it was the co-defendant, acting in collaboration
with the defendant, preferred the charge against the plaintiff. But the change was
made in such a way that it became the duty of the Police to act without exercising
their discretion as the defendant insisted, soon after the charge was preferred.

The following 2 cases - Hopkins v. Crowe, Grinham v. Willey - illustrate the

distinction drawn by the courts between participation creating liability and merely
giving information to a constable who thereupon acts according to his own
judgment

Hopkins v. Crowe, 183663

Facts: A hired driver of a cab drawn by a horse brought the horse back looking
overworked by him. The owner of the horse was absent but the owner's son called
in a policeman and told him that the driver "ill-used" the horse. The policeman said
that if the son charged the driver with cruelty to the horse, he would have the driver
taken into custody. The son replied "I do" and the policeman arrested the driver.
Holding: Court held that it was enough that the son made a charge on which it
became the duty of the constable to act. The fact that he did not specifically request
or demand the driver's arrest was not considered important.
The Court held that the son as complainant was not merely a party giving
information to the officer in consequence of which the arrest was made but that he
was a principal causing the arrest to be made.
Patterson J: "It was proved that the defendant not only told the officer something
which he professed to know but took upon himself to direct the officer to
apprehend the plaintiff. He made his officer his servant for that purpose and he is
therefore, liable in trespass."

Grinham v. Willey
Facts: Defendant who was robbed of a watch agreed to pay 101 pounds to one
Jacob for the return of the watch. Jacobs went out and shortly afterwards, a man
came in and handed a sealed parcel to the plaintiff and told her to give it to the
defendant and she did so. Money was paid at a public house. The watch was in the
parcel. At the request of the defendant, a policeman had been waiting outside and
soon after the watch had been returned to the defendant, he came in and asked the
defendant who had given him back the watch/Defendant replied that it was the
plaintiff. Policeman then took plaintiff and Jacobs to the police station and
defendant signed the charge sheet.
Held: In favor of defendant (Person robbed of watch). Arrest and detention were
the acts of the police officer and the defendant did nothing more than he was bound
to do, viz, sign the charge sheet.
Notes:
-As stated in Salmondon the Law of Torts (Page 165), "An action for false
imprisonment will lie against any person who authorizes or directs the unlawful
arrest or detention of the plaintiff by a merely ministerial officer of the law. He
who sets in motion a merely ministerial officer, such as a constable, has no
protection similar to that which is extended to the litigant in a Court of Justice. If
he makes the ministerial officer his agent, he is responsible for any arrest or
detention so procured or authorized. It is necessary to prove actual direction or
authorization; mere information given to such an officer on which he acts at his
own discretion, is no ground for liability."

The Requirement of Directness

-It must be remembered that false imprisonment is a trespass and like all trespasses
it can only be committed if the defendant's act directly causes the plaintiff injury,
which in this case is the restriction on his freedom of movement.
There is little problem with the requirement of directness where the
"imprisonment" of the plaintiff is by the defendant himself. Problem, however
arises where the physical act of arrest or confinement, or the other act constituting
false imprisonment is done by somebody other than the defendant himself and this
act of the third person is sought to be imputed to the defendant.
It is clear that the mere fact that the actual "imprisonment" is carried out by a
person other than the defendant does not mean that the defendant cannot be liable
in respect of that "imprisonment." Where the third party who personally
"imprisons" the plaintiff is a mere agentof the defendant, exercising no
independent discretion of his own, his action may be imputed to the defendant and
the plaintiffs confinement may be regarded as a direct consequence of the
defendant's interposition of the third party's act.
Thus a defendant who instigates a ministerial officer of the law, such as a police
officer, to arrest a plaintiff may find himself liable in false imprisonment, if he left
no room for the policeman to exercise his own independent judgment as to whether
to effect the arrest or not."
 5.
MALICIOUS PROSECUTION

-Question in all these cases of this kind must be - Who is the prosecutor? And the
answer must depend on the circumstances of the case. Five elements that must be
satisfied;
1.) Defendant initiated criminal procedure against plaintiff.
2.) Criminal procedure instituted without reasonable and probable cause.
3.) Criminal procedure ended in plaintiffs favor.
4.) Proceedings have been set in motion maliciously:
5.) Plaintiff suffered damage as a result of the prosecution.

First Requirement:
To go with police to point out someone is not malicious prosecution.

Nkrumah v. Foli
Facts: First defendant lodged with the police that plaintiff and 4 daughters
assaulted him and they were subsequently arrested and detained overnight. 2nd
defendant went to the station that day but did not complain of assault on him.
Plaintiff and four daughters were tried. Plaintiff was acquitted but the daughters
were convicted. Plaintiff now sued for damages for unlawful arrest, false
imprisonment, malicious prosecution. Plaintiff alleged that second defendant
caused the arrest and told police not to grant bail. The Court found no evidence to
substantiate the claims.
Held: i.) The mere mention of a crime and giving name of the suspect to the police
who then act on their own violation did not amount to actual authorization and
direction. A person who lodged a complaint would not be liable for criminal
prosecution unless he played an overbearing role which amounts to using the law
enforcement agents to serve his interests.
ii.) The fact that a Court had acquitted a person whom the police had good reason
to believe the person had committed an offence was completely irrelevant in
determining the lawfulness or otherwise of his arrest and detention.

Danby v. Beardsley
Facts: The defendant had missed two pairs of horse clippers from his stables. He
sent for a police constable and said, "I have had two pairs of clippers stolen from
me and they were last seen in the possession of Danby." Thereupon the constable,
having made inquiry, arrested the plaintiff without communicating with the
defendant. The plaintiff was taken before a magistrate, and was committed for trial.
He sued the defendant for malicious prosecution. Held: There was no evidence that
the defendant was actively instrumental in putting the criminal law in force, and
therefore was not the prosecutor and was not liable in an action for malicious
prosecution.
Lopes L.J: "With regard to the other grounds of action, namely, malicious
prosecution, it was necessary for the plaintiff to prove that the defendant was the
prosecutor, and that there was an absence of reasonable and probable cause...the
ground on which the case was taken from the jury is that there was no evidence
that the defendant was the prosecutor. I do not find in the books any express
authority as to what a prosecutor is. Is there any evidence to show that the
defendant was instrumental in putting the law in force?... I cannot see upon the
state of the facts that there is any evidence that the defendant was the prosecutor."

Quart Hill Mining Company v. Eyre

-This is a case where a person who falsely subjected the company to the criminal
process was allowed to be sued by the company.
-Although ordinary civil action cannot be the basis for malicious prosecution, in
this case because effects would have same effects on an individual as in malicious
prosecution, would be an exception.
Facts: The defendant purportedly wrote a petition winding the plaintiffs company.
The company brought an action for malicious act without reasonable and probable
cause, for presenting the petition. A non-suit was entered and the company
appealed.
Held: That an action could lie for falsely and maliciously, without reasonable and
probable cause, presenting a petition to wind up a company which was injurious to
the credit of the company. The defendant had no reasonable and probable cause
because at the time that the petition was written, the company was solvent.
Second Requirement: Plaintiff must prove that he/she was acquitted and
discharged of the offence. One must show that the prosecutions did not end in one's
conviction.
Basebe v. Matthews
Facts: It was alleged that the defendant, falsely and maliciously, and without
reasonable and probable cause, appeared before the magistrate and, by making
false, scandalous, and malicious statements caused the justice wrongfully to
convict the plaintiff of assaulting and beating her. The plaintiff claimed damages
for malicious prosecution.
Held: Montagy Smith J. observed that in malicious prosecution, it is essential that
the proceedings was done maliciously without reasonable and probable cause and
that it terminated or by its nature presumed terminated in plaintiffs favor. The
plaintiff must fail as the criminal proceeding had not been determined in his favor.
It made no difference that the plaintiff had no right of appeal against the
conviction.

Boaler v. Holder
If the plaintiff is convicted of a lesser offense, this is termination in the plaintiffs
favor forpurposes of malicious prosecution. In law, you should not charge person
with an offencethat is graver than he actually did.
Fact: The plaintiff was charged and prosecuted for intentionally publishing a
libelous article.The Court varied this charge to one of an unintentional libel. He
was accordingly convicted onthe second offense and upon release from prison,
sued the defendant for malicious prosecution.His claim was dismissed. Upon
appeal, it was
Held: That an action for malicious prosecution could lie against the defendant
since the offence upon which the plaintiff was charged was graver than that which
he was convicted of.
Where Criminal Prosecution is Terminated by NolleProsequi, there is
sufficiently Favorable Termination.
Khourv v. Tabbara
Facts: The appellant sued the respondent claiming damages for malicious
prosecution on the ground that the respondent wrongfully charged him with an
offence for which he was arrested and committed for trial, the proceedings being
terminated by the Crown as a nolleprosequi. The respondent relying on Goddard v.
Smith maintained that the nolleprosequi was not a termination of the proceedings
in appellant's favor and the action for the damages did not lie. The trial judge
agreed and dismissed the action. Plaintiff appealed and relied on the contrary view
in Gilchrist v. Gardner that the action did not lie as, if a plaintiff could not sue for
malicious prosecution after a nolleprosequi, he was deprived of his only chance of
clearing his character.
Held: The Court held that the general rule that the criminal proceedings must have
terminated in favor of the plaintiff suing for malicious prosecution is subject to this
qualification, namely that those proceedings were capable of such termination. A
nolleprosequi terminates criminal proceedings and justice requires that the accused
person should be entitled to sue for malicious prosecution to defend his character.
- "Were the entry of a nolleprosequi to debar the person charged from bringing an
action for malicious prosecution, he would be deprived not only of his opportunity
of obtaining redress for his grievances but of his only chance of clearing his
character and establishing his innocence in the eyes of the world...
I am the opinion that in a case where criminal proceedings have been terminated
by the Attorney General or other law officer entering a nolleprosequi, justice
requires that it be held to be an exception to the general rule that the plaintiff must
prove, in an action for malicious prosecution, that the proceedings terminated in
his favor, and that proof of the entry of a nolleprosequi in a criminal matter is such
a termination of the proceedings in the plaintiffs favor so as to entitle him to bring
an action for malicious prosecution. It seems to me that to hold otherwise would
amount to a denial of justice. By so holding, no injustice is done to the defendant
in such a case because it is always open to him to prove reasonable and probable
cause, and if he succeeds in so doing, the plaintiffs action will fail."

Goddard v. Smith
-Maintained that the entering of a nolleprosequi was not a termination of the
criminal proceedings in favor of the appellant and there was therefore, no cause of
action. -Judge went on to say that it was hard to allow a man who gets off by a
nolleprosequi to maintain an action for malicious prosecution, that he who gets off
on a nolleprosequi does not at all get off on the merits of the case and that, to
maintain a conspiracy, it was necessary to lay and prove an acquittal.
"It is a recognized rule of law that in an action for malicious prosecution it is
necessary for the plaintiff to prove that the proceedings, which he complains were
brought against him by the defendant maliciously and without reasonable and
probable cause terminated in his favor." This rule is however not without exception
and was recognized in judgment of Glichrist v. Gardner.

Glichrist v. Gardner
Facts: It was an action for malicious prosecution in which the declaration alleged
that the plaintiff appeared and was tried upon a charge of uttering a forged receipt,
upon which the Juryfailed to agree; whereupon the Attorney General declined to
proceed further against the plaintiff and he was discharged.
Held: It was held upon a demurrer to the declaration, firstly, that this amounts to a
statement that a nolleprosequi has been entered, and secondly, that the entry of the
nolleprosequi was such a termination of the proceedings in the plaintiffs favor as to
entitle him to bring the action.

Quashing of a Conviction on Appeal is a Sufficiently Favorable Termination of

Proceedings
Danso v. Oteng and others
Danso v. Abaka and others

Danso v. Oteng and Others

Facts: Plaintiff was a traditional member, appointed by a state council, of a local
authority, and in addition was a cocoa buyer. Defendants in first suit were
Chairmen of Local Authority, Finance Committee, and 2 local authority police
officers. Defendants in 2 suits were local authority police officers. After
introduction of the local government ordinance, which requires that the revenues of
stool lands should be paid to the local authority within whose area the land lay,
guidance was given by a circular from the Ministry of Local Govt. The local
authority, or at least the 2 defendant members of it, disagreed with this ruling and
demanded that plaintiff should account for the purchase price of cocoa he had
purchased from stool land. Plaintiff replied that he had paid to the treasury of
appropriate state council.
The first defendant in first suit laid a complaint with the local authority police that
the plaintiff was suspected of misappropriating proceeds from stool cocoa farms.
Plaintiff was arrested without warrant by one of the defendant police officers. He
was released on the second day only after paying over the money that had been
claimed from him.
Reaction of plaintiffs to this treatment was to commence an action for false
imprisonment. Plaintiff however, was again arrested without warrant, and under
pressure, eventually paid to local authority. He was convicted before a Native
Court. On appeal to a Magistrate Court, the conviction was quashed. The second
arrest and subsequent prosecution formed the basis of the second action, which was
for false imprisonment and malicious prosecution.
Held: Judgment was given for plaintiff.
In the case of false imprisonment and malicious prosecution, Court noted that, "I
have no hesitation in finding that the first and second defendants, to use the
language of Hawkins J. in Hicks v. Faulkner, had no honest belief in the guilt of
the accused. The facts would not lead an ordinary, prudent and cautious man to
conclude that the plaintiff was probably guilty of attempted stealing. Having found
that the first and second defendants acted maliciously, that is from an improper or
indirect motive, they do not enjoy any statutory protection for their acts.
In the case of whether quashing a conviction on appeal is a sufficiently favorable
termination of proceedings, Court noted that in these circumstances, it was not and
could not be disputed that the proceedings had terminated in favor of the plaintiff
so as to satisfy that essential element in an action for malicious prosecution.
The Meaning of Reasonable and Probable Cause, and of Malice
Batanhene and Mbir v. Krampah and Aggrey

Batanhene and Mbir v. Krampah and Aggrey

Facts: Action founded on the activities of a Paramount Chief, the first defendant,
who institutedproceedings in a Native Court against the plaintiffs and a number of
other chiefs in his state forthe native customary offence of offering an insult to a
chief. Plaintiffs were two of a group ofchiefs and sub-chiefs dissatisfied with the
conduct of the first defendant and who complained ofhim to the head of the stool
family. The case was eventually sent to State Council. The StateCouncil confirmed
the date but changed the venue. Defendant claimed he did not know of thechange
in venue and took the absence of the chiefs as an insult. Second defendant, a
sergeant in local authority police, arrested plaintiffs and detained them at the police
station. The charge was heard by a Native Court and there was an acquittal.
Plaintiffs, suing for malicious prosecution, sent case to Court.
Held: Judgment entered for plaintiff.
On the first issue of malicious prosecution, there are four elements that constitute
the tort of malicious prosecution.
-The plaintiff in an action for malicious prosecution is required to prove first that
he was prosecuted by the defendant, that is to say that the law was set in motion
against him as a criminal charge. In this case, the first defendant testified that not
only did he lodge a complaint for the arrest of the defendants but he ordered the
police to cause their arrest. He set the law in motion against the plaintiffs on a
criminal charge.
-Secondly, plaintiff has to prove that the prosecution was determined in his favor -
which has been determined.
-Thirdly, plaintiff has to prove that the criminal procedure was instituted against
him without reasonable and probable cause. The first defendant did not take any
reasonable and proper care to satisfy himself of the guilt of the plaintiffs before
setting the law in motion against them.
-Fourthly, plaintiff has to prove that the action was malicious. Malice means
presence of some improper and wrongful motive, an intent to use the legal process
for something other than itslegally appointed and appropriate purpose. This can be
proved as in this case where the circumstances are such that the prosecution can
only be accounted for by imputing some wrong or indirect motive to the
prosecutor.
With regard to the second defendant (policeman), his conduct shows that he was
aware of the improper and wrongful motive which actuated the first defendant and
that he agreed to aid the first defendant to use the legal process in order to coerce
the plaintiffs and to prevent the trial of the destoolment charges against the first
defendant. He is therefore equally liable.

Yeboah and Others v. Boateng VII

Facts: Appellants had been successfully sued in the High Court, Accra, for
damages for malicious prosecution. They appealed to the Supreme Court on two
main grounds, that they had reasonable and probable cause for prosecuting the
respondent and that they had acted withoutmalice.
Facts as found by the trial judge were that the respondents, as the Paramount Chief
of Kwahu, lodged a complaint against the appellants that they had offended him by
paying dues to the Adontenghene without his consent. An arbitration was held,
appellants were held liable and apologized to the respondent. They also paid
pacification fees and schnapps. Apellants then complained to police that
respondents had extorted this money from them. Appellants instituted a private
prosecution in the District Magistrate's Court which found out that a prima facie
case had been made out and committed the respondent to stand trial.
Subsequently, Attorney General entered a nolleprosequiand the respondent then
instituted these proceedings against the appellants. Before the Supreme Court, it
was argued that the appellants who were all illiterate farmers acted on counsel's
opinion on their case and had acted throughout on his advice. Further, the fact that
the District Magistrate had found that the appellants had established a prima facie
case was some evidence of reasonable and probable cause.
Holding: Supreme Court dismissed the appeal. The discharge of a nolleprosequi
entered by the Attorney General terminated proceedings in favor of respondent.
"First duty in an action for malicious prosecution is to prove that the defendant
instituted criminal proceedings against him or was actively instrumental in putting
the law in force against him in proceedings which terminated in his favor. But
proof of this fact alone will not avail him unless he proves further that the
defendant acted without reasonable and probable cause and was guilty of malice.
Lastly, the plaintiff must prove that he suffered damage as a result of the
prosecution.
The fact that the appellants persisted in the prosecution of the respondents after the
police had informed them that the result of the investigation had shown that no
criminal offence had been committed by the respondent is not by itself sufficient
evidence of malice or lack of reasonable and probable cause. The respondent must
prove that the appellants had no honest belief in the case brought against him, or
that they believed him to be innocent.
In the circumstances, I find it difficult to understand what reasonable and probable
cause the defendants might have for prosecuting the respondent after he had
demanded pacification... In my view, the appellants knew that the payment of the
moneys was lawful according to custom, and I am satisfied that any belief they
entertained in the guilt of the respondent was false and groundless.
Counsel submitted that the appellants are all illiterate farmers and that by seeking
counsel's opinion on their case they had acted with the caution and prudence of a
reasonable man...There is no evidence of the exact instructions which they gave the
solicitor but it is clear from the affidavit sworn by the first defendant that they
concealed information from him regarding the arbitration and moneys paid for the
pacification of Omanhene. It seems therefore that the defendants failed to lay the
facts fully and fairly before Counsel and that the opinion of the Counsel was
therefore not well-founded."

Third Requirement: Reasonable and Probable Cause

Hicks v. Faulkner
Judge Hawkins outlined the meaning of reasonable and probable cause at Pages
171-172. From Hawkin's definition, reasonable and probable cause has 2
objectives.
c.) Objective Aspect: Has to do with facts
d.) Subjective Aspect: Has to do with genuineness.
Facts: The defendant was the landlord of a house. The plaintiffs father was the
tenant of these premises. The defendant brought an action against the father to
collect arrears of rent. The father denied owing arrears and said there had been a
surrender of the tenancy before any of the rent became due by giving up the
possession of the premises and delivering the key of the house to the defendant
who accepted it. The father had his son, the plaintiff, swear an oath and give
evidence that the defendant requested the key from him, the defendant.
Held: If he was to succeed, the plaintiff was required to show that he was
prosecuted maliciously and without reasonable and probable cause.
Hawkins J:"I should therefore define 'reasonable and probable cause' to be an
honest belief in the guilt of the accused based upon a full conviction, founded on
reasonable grounds, of the existence of a state of circumstances which, assuming
them to be true, would 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." This definition was adopted by Lord Atkin in
Herniman v. Smith.
Commentary:
These principles in Williams v. Taylor also referred to in Hicks v. Faulkner; "To
succeed in an action for malicious prosecution, the plaintiff must allege and
establish two things - absence of reasonable and probable cause and malice."

THE ESSENTIAL ELEMENTS OF MALICIOUS PROSECUTION

Bassil v. Laba 1927 (Divisional Court)
Facts: Plaintiff borrowed money from defendant and as security, deposited with
him a motor lorry. Subsequently, the defendant was erroneously informed that the
lorry was not the property of the defendant. He reported the matter to the police
who thereupon had the plaintiff arrested and prosecuted for defrauding the
defendant by false pretense. Plaintiff was acquitted and suing the defendant for
false prosecution.
Held: The Court noted that in a case of malicious prosecution, plaintiff must prove,
 a.) That the defendant preferred a criminal charge against him before a judicial
officer.
b.) That the defendant acted maliciously
c.) That the defendant acted without reasonable and probable cause
d.) That the proceedings terminated in the plaintiffs favor.

Court gave judgment to defendant.

a.) Defendant did not act maliciously by reason of the fact only that the
information upon which the warrant for the arrest of the plaintiff was issued, was
sworn to be an officer of police, and not by defendant.
b.) No evidence of malice.
c.) The defendant, then, upon the facts before him, acted as a reasonable and
prudent man would have done in the circumstances, and that he had therefore
reasonable and probable cause for so acting.

Pavin and Azele v. Aliuah and Aagyili

Facts: Arose out of a prosecution for stealing coconuts from a plantation in which
therespondents were acquitted, they then sued the appellant for malicious
prosecution. The judgewho tried the case for malicious prosecution was of the
opinion that the appellant-defendantcould not honestly have believed in the
respondent's guilt and acted maliciously in causingthem to be prosecuted, and the
judge gave the respondents-plaintiffs damages. The defendantappealed arguing that
it was not he but the police that had preferred the charge of theft - he hadmerely
given the information -and that it had not been proved that he was actuated by
improperand indirect motives.
Held: Judge ruled against appellant stating that it was a case of malicious
prosecution.
i.) Although it was true that an officer of police actually preferred the charge of
theft against therespondents, the evidence showed that it was the appellant who
Had been responsible for puttingthe law in motion against them and had instigated
the prosecution.
ii.) The appellant had no honest belief in the guilt of respondents - constituted
malice: for it ishonest belief which is the substantial thing that has always to be
decided.
The respondents were lawfully on the land, and the appellant knew that the land in
question was not his.

Abbot v. Refuge Assurance Co.

Facts: On the advice of an experienced counsel, to whom the facts had been put
fully and fairly, the defendants preferred charges against the plaintiff and he was
convicted of inter alia, forgery, arising out of the payment of the plaintiffs
secretary of the surrender value of a life insurance policy taken out by the plaintiffs
wife with the defendants. The Court of Criminal Appeal held that the case against
the plaintiff should not have been allowed to go to the jury and discharged him and
he sought damages for malicious prosecution.
Held: Taking into account all the factors which should have been considered by the
defendants when deciding whether to prosecute the plaintiff, and among them
counsel's opinion which was a potent though not a conclusive factor, the plaintiff
had not discharged the onus of proving that the defendants had not reasonable and
probable cause to initiate the prosecution. The fact that the defendants were
concerned to recover the money of which they had been defrauded did not
constitute an improper motive or show malice on the part of the defendants in
prosecutingbecause the law imposed a duty to prosecute for felony, that is forgery,
before civil proceedings might be instituted. It followed that the plaintiffs action
failed.
Commentary:
It is impossible to enumerate all the factors which may be relevant in deciding
whether there was reasonable and probable cause. Particularly important points
would be that the defendant acted in good faith on the advice of counsel although
this would not be conclusive. In this case, the consideration was whether the
defendant gave all the facts in his favor. If he withholds from the lawyer facts
which do not suit him, he didn't have reasonable and probable cause.

Herniman v. Smith
Facts: The plaintiff, a timber merchant in London, from time to time supplied
Smith thedefendant with timber. On several occasions, deliveries of timber were
made accompanied byfraudulent documents, which induced the builder to pay to
the timber merchant money to whichHerniman was not entitled. The builder
preferred against Herniman a charge of havingunlawfully and knowingly conspired
to cheat and defraud the defendant Smith. The timbermerchant was found guilty
and sentenced to imprisonment. He appealed and the conviction wasquashed. He
therefore brought an action against the builder for malicious prosecution.
The jury found that,
i.) The builder had commenced and proceeded with the prosecution without any
honest beliefthat the timber merchant was guilty of fraud.
ii.) That the builder had failed or neglected to take reasonable care to inform
himself of the truefacts before commencing or proceeding with the prosecution.
iii.) That in commencing and proceeding with the prosecution, the builder was
actuated by othermotives than desire to bring one whom he honestly believed to be
guilty on appeal,
Held: The Court of Appeal reversed this decision on the grouncf that,
1.) there was reasonable and probable cause for prosecution.
2.) Whether the facts proved amounted to reasonable and probable cause for the
prosecution is aquestion for the judge, and not for the jury.
Per Lord Atkin
It was further said that he should have asked for a further explanation from
Herniman. No doubtcircumstances may exist in that it is right, before charging a
man with misconduct, to ask himfor an explanation...And where a man is satisfied,
as has apparently sufficient evidence, that infact he has been cheated, there is no
obligation to call on the cheat and ask for an explanation,which may only have the
effect of causing material evidence to disappear or to bemanufactured. It is not
required of any prosecutor that he must have tested every possiblerelevant fact
before he takes action. His duty is not to ascertain whether there is a defence, butto
ascertain whether there was reasonable and proper cause for the prosecution.

Soadwah v. Obeng
Facts: The appellant acting upon a report he had received from X and Y sent a
letter accompanied by an affidavit to the police alleging that the respondents had
broken into and stolen his properties from his room in his absence. Subsequently,
the respondents were approached and prosecuted on charges of stealing from the
appellant's house, whereupon they were acquitted and discharged. Respondent then
sued for damages for malicious prosecution. A police sergeant testified that the
appellant before the initial trial visited the police station frequently and submitted a
docket to the A.C.P. who instructed the prosecution of the respondents, and the
judgment was entered for the respondents. On appeal, it was held that,
Held: 1.) To succeed in malicious prosecution, the action of the plaintiff must
allege and establish that,
a.) The defendant initiated the prosecution against him.
b.) Defendant acted without reasonable and probable cause.
c.) Proceeding terminated in his favor (Plaintiff).
The appellant merely gave information on the strength of which a prosecution was
commenced by the ACP, an exercise of his discretion. One of the essential
requirements, namely the appellant instituted a prosecution, it was not proved.
Per Siriboe J:"Reasonable and probable cause means an honest belief in the guilt
of the accused based upon a full conviction, founded upon grounds of the existence
of a state of circumstances, which assuming them to be true, would lead any
reasonably ordinary prudent and cautious man placed in the position of the accused
to the conclusion that the person charged was probably guilty of the crime
imputed."

Musa v. Limo Wulana

Facts: The chief of limo village made it unlawful fishing in a dam, the villagers
only source of drinking water. Two men were charged with nuisance which
provided only for the imposition of a fine on conviction. They were acquitted and
discharged and sued the chief and Abubakari (who accompanied the chief to the
police station). The trial judge dismissed the charges against Abubakari and
entered judgment for him without costs. He found the chief (1st defendant) guilty,
holding that he knowingly made a false report to the police because his relations
with the plaintiff was strained.
On appeal, it was argued that the trial judge had failed to make any finding as to
who was the prosecutor, especially since the prosecution was conducted by the
police, and without such finding, he could not have given judgment for the
plaintiffs. Abubakari appealed against the failure of the trail judge to award him
costs.
Held: i.) "The chief was the prosecutor because the report to the police was false to
his knowledge and he had no reason to believe in its truth, though the actual
prosecution was conducted by the police. The chief was actively instrumental in
setting the law in motion if he does more than merely give information to the
police or a judicial officer, such as a magistrate" - Azu Crabbe CJ.
ii.) A prosecutor could not be made liable unless the plaintiff proved he had
suffered damages. The conditions of the proof of damage are,
a.) damage to one's fame as if the matter whereof one was accused to be
scandalous.
b.) damage to one's person as where one was put in danger to lose one's life or limb
or liberty
c.) damage to property as when one was forced to expend money to unnecessary
charges to acquit one's self of the crime of which one was accused. Thus a criminal
charge brought and dismissed would only form the basis for an action so malicious
prosecution if the charge was of a scandalous nature and reason demanded that the
standard should be whether a reasonable man hearing of the proceedings brought
against the plaintiff, would form the view that they were a damaging reflection of
the "fair fame" of the plaintiff.
The plaintiffs by their prosecution were not put in danger of losing their liberty, no
scandal was alleged and no reasonable person in Limo village formed the view that
the charge had injured their fair fame. They failed to prove that they had spent any
money in their defence. Their action therefore did not lie.
Abubakari was unjustifiably deprived of his costs after successfully defending the
action brought against him by the plaintiffs. He is entitled to his costs. Azu Crabbe:
"Where the law punishes an offence with imprisonment, a moral stigma inevitably
attaches to the convicted person."

Glinski v. Mclver
Facts: On September 13, 1965, a detective sergeant of the CID who was
investigating a seriesof frauds on textile manufacturers, having ample grounds for
suspecting that Glinski was aperson concerned with the frauds, arrested him, the
warrant being issued for the arrest of oneDavies who it was believed impersonated
Glinski. Davies was put up for identification but wasnot identified as Glinski.
Solicitor in New Scotland Yard delivered to counsel to prosecutecertain people and
to advise on "the Glinski aspect of the matter." A warrant was issued andGlinski
was rearrested and charged with conspiracy to defraud. He was tried on conspiracy
andacquitted. He sued the detective sergeant for false imprisonment and malicious
prosecution. Thejudge put the following questions to the jury in the malicious
prosecution;
1.) Has it been proved that the police officer in starting the prosecution of the
appellant forconspiracy to defraud was actuated by malice, that is, any motive or
motives other than a desireto bring the appellant to justice? - Yes.
2.) Did the police officer honestly believe that the appellant was guilty of the
offence ofconspiracy to defraud? - No
It was left for the judge to decide whether there was reasonable a/id probable cause
for theprosecution. He held that there was no such cause. The detective sergeant
appealed to the Courtof Appeal which allowed the appeal and the plaintiff, Glinski,
appealed to the House of Lords.
The appeal was dismissed.
Held: The second question should not have been left to the jury because there was
no evidenceon which there could be founded a finding that the police officer did
not honestly believe in hiscase, and if the jury's answer was disregarded, the
conclusion is that there was reasonable and probable cause for the prosecution.
2.) Since the advice to prosecute Glinski was given by a competent lawyer, the
police officer had reasonable and probable cause and that the police officer need
not crosscheck all the facts to establish guilt.
Per Viscount Simonds: "Just as the prosecutor is justified in acting on information
about facts given him by reliable witnesses, so he may act on advice on the law
given him by a competent lawyer, and applying this principle to the case of a
police officer who prefers a charge and at every stage acts on competent advice,
particularly perhaps if it is advice of the legal department of Scotland Yard, I
should find it difficult to say that the officer acted without reasonable and probable
cause."

Saville v. Roberts
Facts: The defendant maliciously indicted the plaintiff for causing riot. He was
acquitted on thecharge and brought an action for damages to his home and
expenses for defending himself.
Held: That an action on the case lies for malicious prosecution in the circumstances
in which aperson is indicted of a riot in which he was acquitted.

Per Holt C. J.
There are three sorts of damage to one's person which can give rise to malicious
prosecution and one of each is sufficient to bring an action.
i.) The first is damage to his person whereby he is imprisoned.
ii.) Damage to his name where the matter is scandalous.
iii.) Damage to his property - where he expends to clear himself of the charge.

Wiffen v. Barley and Romford83

Facts: Some of the rooms occupied by the plaintiff were in dirty condition and the
plaintiffswife wrote to the sanitary inspector inviting him to inspect the premises
and requesting hisassistance to compel the landlord to clean and repair them. The
sanitary inspector inspected thepremises and served the plaintiff notice to abate the
nuisance. Plaintiff refused to comply withnotice and said it was the work of the
landlord. Upon the instructions of the Urban DistrictCouncil, the sanitary inspector
charged the plaintiff to compel him to abate the nuisance.Justices later dismissed
the complaint and awarded the plaintiff costs. The plaintiff incurredextra costs
between solicitor and client in defending him. The plaintiff brought an action
formalicious prosecution against the sanitary inspector and the Ramford U.D.C.
alleging heincurred extra expenses and had suffered damage by being injured in his
reputation.
Held: The action could not lie because the plaintiff had not proved
i.) That, owing to the nature of the proceeding taken against him, damage to his
name, as if the
matter of which he had been accused was scandalous, nor
ii.) that his life, limb or liberty had been endangered, although if he had been fined
and failed topay the fine, he might have been imprisoned nor
iii.) pecuniary damage for the difference between solicitor and client costs and
party coasts was not legal damage.

WILKINSON v. DOWNTON

Wilkinson v. Downton
The rule has 3 elements;
a.) a false statement or misrepresentation. This could result from acts, words or
gestures(Wilkinson v. Downton)
b.) calculated to cause injury to a person (Burris v. Azadani, Khorasandjan v.
Bush)
c.) actually causing injury (Janvier v. Sweeney)

Wilkinson v. Downton
Key Principle: When there is no contact or physical force used, liability can arise
for any intentionally inflicted bodily harm.
Facts: In this case, the defendant in the execution of what he seems to have
regarded as a practical joke, represented to the plaintiff that he was charged by her
husband with a message to her to the effect that her husband was smashed up in an
accident, and was lying in a hospital with both legs broken and that she was to go
at once in a cab with two pillows to fetch him home. All that was false. The effect
on the system of the plaintiff was a violent shock to her nervous system, producing
vomiting and other more serious and permanent physical consequences at one time
threatening her reason, and entailing weeks of suffering and incapacity to her as
well as expense to her husband for medical attendance. These consequences were
not in any way the result of previous ill-health or weakness of constitution; nor was
there any evidence of predisposition to nervous shock or any other idiosyncrasy.
Held: Wright J. laid down the principle that it is a tort to do a willful act which is
calculated to cause, and does in fact cause, physical harm to another. This tort,
being derived from the old tort of action on the case, is committed even when the
plaintiffs injury is the indirect consequence of the defendant's act.

Rule in Wilkinson v. Downton

-This is an action on the case but treated with trespasses because like trespasses, it
is founded on intentional conduct.
-It does not fit with any of the existing torts but stands by itself. At the time this
occurred, there was no precedent. Plaintiff could not bring an action in trespass
because trespass required a direct act or threat of direct act but here injury occurred
because plaintiff believed the defendant.
Justice Bright came to the conclusion that a person that suffered in such
circumstances could bring a tort of injury because had caused harm to plaintiff and
law must provide relief for such people. Since it did not fit in any of remedies then
established, it became a remedy unto itself. That rule has 3 elements;
1.) a false statement or misrepresentation
2.) calculated to cause injury to a person
3.) actually causing injury.
It is an actionable wrong. A case in which the rule was successfully made out is,

Janvier v. Sweeney
Facts: The defendants, private detectives, told the plaintiff that unless she procured
certain letters of her mistress for them, they would disclose to the authorities that
her fiance, an internee, was a traitor. They knew that she had no such evidence.
She recovered damages for the physical illness brought on by nervous shock
occasioned by the defendants' conduct. Held: Court ruled in her favor. Argued with
precedent of Wilkinson and won.

R. v. National Society for Cruelty to Animals

Facts: Defendant had information that plaintiff maltreating her child. Actually, it
was false. The charge and the act of being investigated as to the maltreatment of a
child, was too much for her. She suffered shock and sued. She wanted the name of
the person that had provided that information.
Held: Her action failed because under the rule in Wilkinson, defendants had not set
out to cause her injury (2nd requirement).

Bernett v. George
Facts: Plaintiff subjected defendant to harassment through unwelcome phone calls.
Plaintiff sued.
Held: In this, the rule in Wilkinson would have applied if she had suffered damage
but there was no proof that she had suffered damage.

Khorasandiian v. Bush
Facts: Evidence that because of unwelcome phone calls, defendant suffered
psychiatric illness.
Held: Appropriate to apply rule in Wilkinson.

TRESPASS TO LAND

Salmondon Torts (16th Edition, Pg 38). The wrong of trespass to land {trespass
quareclausumfregit) consists in the act of
a.) Entering upon land in the possession of the plaintiff or
b.) Remaining upon such land or
c.) Placing or projecting any material upon it - (in each case without legal
justification).

Trespass to Land
1.) The act complained of must be a direct act. (Pickering v. Rudd)
2.) Direct Act was voluntary - in control of instrument causing harm (Gilbert v.
Stone, Baselyv. Clarkson)
3.) State of mind of the defendants - whether they acted intentionally or negligently
(Smith v.Stone)
4.) Plaintiff must show physical contact/interference with the land (Lavendar v.
Betts, Pererav. Vandiyar)
5.) Plaintiff must show lack of consent to the interference (Hurst v. Picture
Theatres,Harrison v. Duke of Rutland)
6.) Plaintiff must prove Positive Act -Not doing is not trespass (Lavendar v. Betts,
Perera v.Vandiyar)

Capacity of person to bring action - Plaintiff must prove that in possession

(WutaOffei v. Danquah, Oshodemirin v. Tetteh, White v. Bayley)

To Determine Who is in Possession of Chattels Found Loose on Land

1.) First factor is nature of land.
2.) Extent of public access to land/Place where found
3.) Whether owner of land found occupied on land.

Gregory v. Piper
Facts: A master told his servant to put some rubbish near to, but not touching, a
neighbor's wall. The servant used ordinary care but some of the rubbish naturally
ran against the wall. Held: The master was answerable in trespass as the running
against the wall was the necessary or natural consequence of the act that he had
ordered to be done.

Pickering v. Rudd
Principle: To cause anything that has size and mass to come into contact with the
land is a trespass.
Facts: The plaintiff and defendant are neighbors. Plaintiff plants a type of plant on
his land. The plant spreads itself over to the side of the defendant's house.
Defendant, who is a barber, decides to put up a billboard to advertise his services
so he gets onto a ladder, and cuts off part of the plant spreading into his own house,
without entering into the plaintiffs property. He fixes the board and part of it
projects into the airspace of plaintiff s property. Plaintiff sues.
Held: Plaintiff cannot succeed in trespass.
Lord Ellenbrough had no difficulty in holding that a man is a trespasser who fires a
gun on his own land so that the shot fall on his neighbor's land.
There must be physical interference with the land. That also means the defendant
made contact with his or her person or contact through some instrument. We can
interpret this by contrasting the cases of (Lavender v. Betts, and Perera v.
Vandiyar).

Lavender v. Betts
Facts: Defendant rented a flat of his to the plaintiff on weekly tenancy basis.
Plaintiff was not paying rent regularly so fell into arrears and was given notice to
quit. He ignored the notice and continued living on the property. He had by the
time the action was occurring, had become a statutory tenant (to get him out
lawfully, must bring an action in court). Defendant obtained access on pretext that
he was going to have a discussion with plaintiffs wife. He brought men along with
him and had them remove the doors and windows. This was winter time.
Plaintiffcould only live in house without doors and windows so sued for trespass to
land. The plaintiff sued for trespass upon their tenancy and wrongful interference
with quiet enjoyment of the premises and damages.
Held: i.) That action by the tenant against landlord will succeed. It was pointed out
that the landlord had physically interfered with the land. The removal of the doors
and windows was a breach of the covenant for quiet enjoyment, which was an
implied term of statutory tenancy, and the plaintiff was entitled to punitive
damages. Per Atkinson J. (Some Comic relief)
"The defendant has said quite frankly, 'When my tenants do not pay rent and I want
to get rid of them, if I go to the court it takes time to get the cases on, and county
court judges make terms, and it is very difficult to get rid of your tenants, and he
wants to be in a position to ride rough-shed over his tenants. The practice he has
adopted when he wants to get rid of a tenant is to give a week's notice, and then to
go in with someone in his employ armed with hammers, and more formidable
weapons if necessary, to call in the police to his aid, and to go into the house and
hack off the doors and the windows. That is his method of riding rough-shed over
the Acts of Parliament and here today he is claiming he has the right to do that. I
have the slightest hesitation in saying he has no such right."

Perera v. Vandiyar
Facts: Facts are about the same in this case too. Tenant had become statutory
tenant. Landlord happened to live in the premises so without physically interfering,
cut off electricity and gas forcing tenant to leave. It was reconnected a week later
and tenant sued for trespass.
Held: Appellate Court said no tort of eviction and if any injury caused by eviction,
remedy in property law and no physical interference with land, and action must
fail.
As the landlord's action did not constitute interference with any part of the demised
premises, it could not be regarded as a trespass, although an eviction which
involved a trespass would be a tort. The mere intention to evict was not a tort and
did not become a tort even if the landlord hoped to give effect to the eviction by
interfering with the tenant's contractual right and therefore, the tenant was entitled
to damages merely for the breach of covenant and in respect of special damage
which was proved, and he was not entitled to an additional sum of punitive
damages on the basis that the landlord had committed a tort. Appeal allowed.
Per Romer L.J:"Eviction might, in certain circumstances, be a tort, and certainly
would be if it involved a trespass but the mere intention to evict, cannot, as I see it,
be a tort, nor does it become a tort merely because the person who forms the
intention hopes to give effect to it by interfering with the tenant's contractual
rights. That is what the landlord did in the present case, and in respect of the first
sum of 25 pounds was awarded against him. But he did not bring himself into the
area of tort that would justify the awarding of a further sum under the threat of
punitive damages."
………
If you remain after permission has been revoked, you become a trespasser. Person
in possession, may, using reasonable force, throw you out. When can we say
license has been revoked and using reasonable force throw you out? (Hurst v.
Picture Theatres, Robson v. Hallett). Cowell v Rosehill Race Course,

Hurst v. Picture Theatres

Facts: Plaintiff paid to watch a film at the defendant's cinema. Sometime after
screening began, plaintiff was asked to leave on suspicion of not having a ticket.
He was forced out and he sued for assault and false imprisonment. The theater
countered that they had the right to evict him. Held: Appellate Court said that a
person who purchases a ticket has the right to stay for the whole performance so
far as he behaves properly and complies with the rules of the management. When
you buy the ticket, there is an undertaking that as long as you respect the rules, you
have the right to watch to the end.

Cowell v. Rosehill Race Course

Facts: Plaintiff sued defendant for assault. Defendant said plaintiff was trespassing
on the land. Plaintiff paid some money to watch the race meeting. He would not
leave, and was forcibly removed. Plaintiff argued that he had a right to be there and
the purported removal was unlawful and was therefore a battery.
Held: Court ruled that the action in battery must fail because the force used to
remove him was reasonable. The Court said that the ticket established a contract
between him and the operators of the show but the ticket did not have anything to
do with rights to the land. As far as the land was concerned, they could ask him to
leave at any time and could remove him if they used reasonable force. If he had a
claim, it would be for a claim in contract.
-Judges were aware of Hurst decision. Australian decision seems a better one. All
you are saying is you have a ticket.

Robson v. Hallett
Facts: Three police officers, a sergeant and two constables, were making enquiries
in the course of their duty to the appellant's house, the house of which his father
was the tenant. The police offers went through the unlocked gate and small garden
and knocked at the door. The appellant, Thomas Robson, opened the door and one
of the constables asked him if he had been out that night, saying they were making
some enquiries. The sergeant also came to the door and Thomas said they could
come in but not the two police constables. When the sergeant entered, the father
told him to get out. At the threshold of the door, the appellant Thomas jumped on
his back and punched him. When the two constables saw the sergeant fall with
Thomas on his back, one of the constables went to the sergeant's aid and pulled
Thomas off and a melee ensued. Theappellant, Dennis Robson, came around and
kicked and punched the other police constable andthe sergeant. The appellants
were convicted of assaulting the police constable in the executionof his duty and
they appealed. The appellants argued that the policemen had no authority fromthe
tenant to enter, and they became trespassers.
Held: All three officers were lawfully on the premises because they had an implied
license to be there.
2.) On the sergeant's license to be in the house being withdrawn by the father, the
sergeant had a reasonable time in which to leave and was not therefore a trespasser
and was still in the executing of his duty at the time when he was assaulted.
Commentary:
Point in this case is that, you must give person - after revoking the permission -
reasonable time to leave. Once one enters a place, it is required that one is given
reasonable time to leave so after revocation of the license and after, reasonable
force can be used to get you out.
Smith v. Stone
Principle: The act complained of must be a voluntary act and for this purpose it is
immaterial if one knew he/she was trespassing or not. However, if the trespass is
caused by others causing one to be in contact with the land, then one* is not liable.
Facts: Action in trespass brought against Stone for trespass to Smith's land. He said
he was carried there by others and did not go there on his own violation.
Held: Trespass was by those that brought him there. "[It]'s the same as he that
drives my cattel [sic] into another man's land. The trespass is against him and not I
who am the owner of the cattle."-Roll C.J.
-There is a distinction between an involuntary act and an honest mistake because
mistake as such is not a defense in a trespass. If you cut your neighbor's grass
believing it to be yours, it is a trespass because the cutting is voluntary. And it does
not matter if the mistake is of facts or of law. For example if you deliver goods by
mistake on the doorsteps of the plaintiff, it is a trespass. In the same way, it is a
trespass to stray in the dark and walk on the plaintiffs land. It was held to be a
trespass in Basely v. Clarkson where the defendant by his voluntary action, mowed
and took away the grass from the plaintiff’s land.
Commentary: This case has to be distinguished from when I make a trespass but
from an honest mistake such as mistakenly cutting a neighbor's grass. Fact that I
did it mistakenly does not affect voluntariness. It will be trespass if I stray onto
another's land at Right by mistake etc.

Basely v. Clarkson
Facts: The defendant in mowing grass on his own lawn took part of plaintiff s grass
away. Hepaid some amount in damages but nevertheless, was sued.
Held: Action will lie because the act of mowing lawn was voluntary. It does not
matter whetherhe was aware or not that he was trespassing on the land.
Commentary:Intentionally or negligently entering or remaining on, or directly
causing any physical matter to come into contact with land in the possession of
another is a trespass quareclausumfregit.
Gilbert v. Stone
Principle: If a person is chased and that person runs onto the land of another, it is a
trespass because it is voluntary. One had the choice to allow one's self to be caught,
or togo onto the land.
Facts:Gilbert brought an action of trespass quareclausumfregit and taking of a
geldingagainst Stone. The defendant pleads that he for fear of his life, and
wounding of 12 armed men,who threatened to kill him if he did not the fact, went
into the house of the plaintiff and took the gelding. The plaintiff demurred to this
plea.Held: This is no plea to justify the defendant, for I may not do a trespass for
fear ofthreatenings of another, for by this means the party injured shall have no
satisfaction, for hecannot have it of the party threatened.

WutaOfei v. Danquah
Facts: The respondent was granted a portion of land by the Osu Stool and she
erected pillars on the land. She entrusted her mother to take care of the land. In
1940, certain lands including the respondent’s were vested in the Chief Secretary
in trust for the owner free from all titles but subject to release when no longer
required. In 1948, the appellant erected a building on the land upon warnings from
the respondent. The respondent then instituted an action in trespass.
Held: That when the appellant entered the land it was already in the possession of
the respondent hence she could not maintain an action in trespass.
Commentary:
In order to establish possession of land, it is not necessary for a claimant to take
some active steps in relation to the land such as enclosing the land or cultivating it.
The type of conduct that indicates possession must vary with the type of land, and
where the possession sought to be maintained is against a person who never had
any title to the land, the slightest amount of possession should be sufficient to
maintain an action for trespass.

Kelsen v. Imperial Tobacco

The erection of 3 metal signboards in the airspace of the plaintiffs land was held to
be atrespass. The defendant made no physical contact with the plaintiffs land
except the partof the advertising board that projected to the plaintiffs land.
Facts: The plaintiff owned a house adjoining the shops of the defendants. The
defendantserected an advertising sign on their land that projected over the plaintiffs
premises, theprojection being about four inches with the knowledge of the plaintiff.
The plaintiff gave noticeto the defendants to remove the sign, which they failed to
comply. Plaintiff instituted the actionclaiming,
i.) Damages for trespass
ii.) An order of injunction restraining the projection of the sign over this premises
and forremoval of the sign.
Held: i.) The airspace above the shop was part of the premises demised to the
plaintiff. Thelease taken did nothing to displace the prima facie conclusion that the
demise of the premisesincluded the airspace above the shop.
ii.) The plaintiffs conduct of allowing the sign to remain on the wall of the
adjoining buildingdid not stop him from subsequently requiring it to be removed
because
a.) He merely represented that he would not object to the sign in future, and
representation ofintention did not give rise to an estoppel.
b.) On the facts, the defendants were not induced by the conduct of the plaintiff to
act to theirprejudice.
iii.) The invasion of the plaintiffs airspace amounted to a trespass and not merely to
a nuisance,and though the injury to the plaintiffs legal rights is small, he was
entitled to mandatorydamages requiring the defendants to remove the sign.
Commentary:In Kelsen v. Imperial Tobacco, the duration was permanent while in
Ellis v. Loftus, theduration was transient. It was held to be trespass, the projection
of the horse's mouth to bite themare.

Ellis v. Loftus Iron Co.

Facts: While the plaintiffs mare and the defendant's stallion were in adjacent fields
separated by a wire mesh, the stallion kicked and bit the mare through the fence,
causing injury.
Held: That there was evidence of a trespass on the plaintiffs land by the defendant's
stallion, the damages caused was not too remote, and therefore the defendants were
liable. Brett J: "It was at one time doubted whether trespass could be committed by
the owner of cattle straying entirely without any negligence on his part, although I
never doubted that the ingredient of negligence would constitute a trespass. But in
as much as a man himself going on the land of another without any evil intent
commits a trespass, therefore so also if a man's cattle stray upon another's land, the
owner of the cattle commits a trespass, and that, too, however much care he may
have personally taken to prevent the trespass being committed. In fact I go the
whole length and say, that in whatever case the cattle of one man are found upon
the land of another, in that case the owner of the straying cattle is liable in
trespass."

Bernstein v. Skyviews and General Ltd.

Facts: The defendants flew over the plaintiffs land for the purpose of taking an
aerialphotograph of the plaintiffs house which they offered to sell to him. The
plaintiff claimeddamages alleging that by entering the airspace above his property,
the defendants were guilty of trespass and or were guilty of an actionable invasion
of the plaintiffs privacy by taking the photographs without his consent.
Held: It was held that an owner's rights in the airspace above his land were
restricted to such height as was necessary for the ordinary use and enjoyment of
the landed structures upon it, and above that height he had no greater rights than
any other member of the public.
It was also held that the defendant's aircraft did not infringe on the rights of the
plaintiffs airspace and thus did not commit any trespass by flying over the land for
the purpose of taking a photograph. Plaintiff was restricted to such height as was
necessary for the ordinary usage and enjoyment of the land.

Mensa v. Peniana
Facts: The plaintiff sued the defendant for trespass to his cocoa and coffee farms
and palm treesby way of felling down about 45 palm trees for the purpose of
tapping. The plaintiff alsoclaimed an interim injunction. The defendant
counterclaimed the, farms as his bona fideproperty and gave a detailed account of
the root of his title to the disputed farms. Even thoughthe plaintiff did not claim
ownership of the disputed farms, evidence as to ownership was led byhim at the
trial. The plaintiff failed in the courts of first and second instances on the ground
thathe had not discharged the burden of proving ownership. He appealed to the
Court of Appeal.
Held: Dismissing the Appeal.
i.) Where a plaintiff sues a defendant for damages for trespass to land, and he is
met with adefense by the plaintiff that he owns the trespassed land, the plaintiff is
deemed to have put histitle in issue only where he also claims permanent
injunction as an additional relief. Since theplaintiff did not include a claim for
permanent injunction but merely an application for interiminjunction, his title was
not put in issue and he was therefore not bound to prove it.
ii.) Proof of possession by a plaintiff is sufficient to maintain an action for trespass
against thedefendant who cannot prove a better title. Therefore a claim of absolute
ownership by adefendant does not automatically put the plaintiff to proof of his
title. He must, however fail ifthe defendant is able to establish his title to
ownership or that he went on the land with thepermission of the real owner.
iii.) Even though the plaintiff at the trial led evidence as to his title of ownership,
that did notcast upon him the onus of proving his title to ownership in a claim
founded on trespass.
iv.) The plaintiff however must fail in his claim because,
1.) He did not prove sufficient ownership.
2.) The defendant proved beyond all reasonable doubt that he was the owner of the
farm indispute.

Oshodemirin v. Tetteh
Facts: The plaintiff, a licensee of Tema Development Corporation, had since
August 1964 been in arrears with his rent. In 1967, TDC asked plot holders to re-
register their plots, stating that on failure to do so, it would be assumed that the
plots had been abandoned. The plaintiff did not reregister his plot. The same plot
was granted to the defendant, but there was no evidence that she registered it. The
defendant entered into possession of the land and plaintiff sued - inter alia, in
trespass averring ownership to the plot. The trial court ruled on the facts that the
plaintiff was neither the owner nor in possession of the plot and gave judgment to
the defendant. Plaintiff appealed, amending the claim to possession.
Held: i.) The power given by Section 158 to the TDC to allocate plots and collect
rent accruing therefrom, and the provisions of Act 159 ensuring the prompt
payment of these rents were intended for the welfare of the general public. It is in
the public interest that those that cannot pay their rent be ejected and reallocated to
other members of the public. ii.) The statutory instrument imposed on the TDC
entrusting it with the power to exercise for the protection and benefit of the public
cannot be waived.
iii.) The defendant was as much a trespasser as the plaintiff but the maxim will
apply thus; meliorestconditioubi neuter jus habet.102 The maxim will apply in
favor of the defendant because she was in physical possession at the
commencement of the proceedings. NB: Plaintiff never exercised physical control
over the land since its allocation. His failure to pay promptly the rent breached the
original agreement and tacitly or impliedly terminated his license. Though
defendant was a trespasser for not registering the land, she was in physical
possession at the commencement of the proceedings.

Harrison v. Duke of Rutland

If you put highway to improper use, you are in trespass.
Facts: The Duke of Rutland, an aristocrat, and his friends, derived pleasure from
hunting birds as a sport and Harrison did not like this sport so he would stand on
the road and when Duke etc.aiming, he would scare away the birds. The Duke
warned him. When Harrison would not stop,the Duke employed some people to
pin Harrison down while they hunted until when tired ofhunting, asked that they
release him. Harrison went to Court claiming battery, imprisonmentetc.
Held: It was held that Harrison was in trespass because Harrison was not using the
road for itsactual purpose and so it was reasonable for the plaintiff to restrain him.
-Loitering on a highway not for the purpose of using it as a highway, but for the
purpose ofannoying the owner of the soil in his lawful use of the adjacent land is a
trespass.

Hickman v. Maisev
Prying into owner's occupation is a trespass of the owner.
Facts: For about an hour and a half, the defendant, a 'racing tout,' walked
backwards andforwards along a highway, the soil of which in addition to the land
on either side, was owned bythe plaintiff. The racehorses were trained on the
plaintiffs land adjoining the highway and thedefendant was on the highway for the
purpose of taking notes of their performance.
Held: The defendant was a trespasser as he had exceeded the ordinary and
reasonable use of thehighway as to which the public is entitled, and he therefore
was guilty of a trespass on theplaintiffs land.

Hill v.Tupper
Mere use of land does not give capacity to maintain an action in trespass.
Facts: An incorporated canal company by deed granted a certain canal for the
exclusive right orliberty of putting or using measure boats for the purpose of
pleasure and to let the boats for hire.He then brought an action in his own name for
trespass against the defendant alleging that thedefendant had unjustly disturbed the
plaintiff by using and hiring the said canal.
Held: The grant did not create such an estate or interest in the plaintiff so as to
enable him tomaintain an action in his own name against person who disturbed his
right by putting and usinghis pleasure boat for hire on the canal.
Pollock CB: was of the opinion that the grant merely operated as a license or
covenant on thepart of the grantors and is binding between them and the grantee
but gives him the right ofaction in his own name for any infringements on the
supposed exclusive right.
Commentary:
Mere occupation of premises is not possession and therefore the occupier cannot
maintain anaction in trespass to the land - For example university lecturers
occupying governmentbungalows, students occupying rooms in halls.

White v.Bayley
Facts: The plaintiff entered into a contract with the defendant under which he was
to be paid for managing and living in premises rented by the defendants. The
contract was terminable on 6 months’ notice. The defendant gave notice to
terminate contract and thereupon took possession of the premises. The plaintiff re-
entered the premises forcibly and the defendant obtained an injunction compelling
the plaintiff to quit. Plaintiffs action for trespass was non-suited. Held: That
trespass quareclausumfregit does not lie unless the plaintiff had some estate in the
land. He could not even maintain an action against a stranger because he had only
the use but not the occupation of the premises.
TRESPASS TO CHATTELS

1.) The act complained of must be a direct act.

2.) Direct Act was voluntary
3.) State of mind of the defendants - whether they acted intentionally or negligently
4.) Plaintiff must show physical contact/interference with the chattel
5.) Plaintiff must show lack of consent to the interference
6.) Plaintiff must prove Positive Act-Not doing is not trespass

Penfold Wines Proprietary Ltd. v. Elliot

(1946) 74 C.L.R. 204
Wright, Cases on Torts (4th edition) Page 76
Compare/Contrast with Leitch v. Leydon

Forson v. Koens
Facts; To pay the full purchase price at the end of a stated period. Nevertheless, the
first defendant, under a false belief that she had a legal claim to the car for non-
payment of the outstanding balance, authorized the second defendant, a senior
army officer, then in his army uniform, to seize the car (parked at that material
time) in a public place at Sekondi where the plaintiff was practicing his profession.
The seizure was effected in the presence of a lot of people. The plaintiff who was
thereby embarrassed and had to resort to the hiring of taxis to enable him carry out
his professional and social work, sued for inter alia, damages for unlawful seizure.
Held: i.) The seizure of the car by the second defendant on the instructions of the
first defendant was a tort of trespass (that is an intentional and a direct interference
with a chattel in the possession of another) whose object was to give protection to a
plaintiff in the retention of his chattel and his interest in its physical condition but
also protection against intermeddling with his chattel.
ii.) Damages for the tort of trespass to chattels were always at large and in
deserving case as a.) The effect of a wrongful seizure in a plaintiffs credit and b.)
an unfounded pretence of a legalclaim as in the instant case, exemplary damages
may be awarded.

Per Edusei J.
"...Any person who authorizes or procures a tort to be committed by another person
isresponsible for that tort as if he had committed it himself. The tort of civil wrong
is adequatelydescribed in the Latin rubic, Quifacitperaliumfacit per se. [He who
acts through another isdeemed to act in person]. A principle is liable for the acts of
his agents.
-Tindal C.J stated clearly the principle thus, "all who procure a trespass to be done
aretrespassers themselves." -"
-The plaintiff in an action for trespass must at the time of the trespass have the
presentpossession of the goods, either actual or constructive, or a legal right to the
immediatepossession."
-Be that as it may, the tort of trespass gives protection to a plaintiff in the retention
ofpossession of his chattel; it also affords protection to his interest in the physical
condition of hischattel and it also protects the plaintiff against intermeddling with
his chattel" - per Edusei J.

Everitt v. Martin
Judge in New Zealand said that an intentional interference with chattel should be
actionableonly upon proof of damage.
Facts: Defendant's car was parked in a car park. Plaintiff came and parked next to
thedefendant, and plaintiffs coat was caught on a dilapidated part of the defendant's
car. Plaintiffsued. Defendant then reiterated that the plaintiff committed trespass to
his car by allowing hiscoat to be caught on the fender of his car.
Held: In a case of merely accidental contact, should not succeed unless able to
show damage toone's car. Because defendant could not show damage to his car,
action will fail.
Commentary:Judge said he was depending on Slater v. Swan. Slater v. Swan is an
action on the case so makes sense that plaintiff cannot succeed unless proves
damage. It is however, difficult for a judge to justify an action in trespass using a
case in trespass on the case.

Leitch v. Levdon
Facts: The appellants were manufacturers of aerated waters, the respondent was a
grocer who supplied customers with aerated water which he drew from a soda
fountain and placed in a receptacle brought by the customer. The appellants
notified their wholesale customers that bottles containing their aerated water
remained their property, and when empty must be returned to them. It was assumed
for the purposes of the case that the consumers were in lawful possession of the
bottles. Certain consumers brought to the respondent bottles of the appellants and
requested that he fill them with aerated water from the soda fountain. The
respondent made no inquiry of his customers as to their ownership of the bottles
provided, but filled bottles which were produced to him without examining them.
It was conceded that there was no contractual relationship between the appellants
and the respondent. By their note of suspension and interdict, the appellants sought
to interdict the respondent
i.) from receiving from his customers bottles belonging to the appellants and
embossed with their name for the purpose of filling the same with soda water,
lemonade, and drawn from a vantas or other soda water fountain containing soda
water, lemonade and not of the appellants' manufacture; and
ii.) from filling with soda water, lemonade and drawn from a vantas or other soda
water fountain bottles belonging to the appellants and embossed with their names
for the purpose of selling the contents thereof when sold from his shop or other
premises. The respondent pleaded that, assuming that the property in the bottles
remained in the appellants, the respondent before filling the bottles owed no duty
to the appellants to examine them or inquire them into their history.
Held: In as much as there was no contractual relationship between the appellants
and the respondent, there was no duty cast upon the respondent to examine the
bottles tendered to him in the course of his trade in order to ensure that they were
not bottles belonging to the appellants and being used for purposes for which the
appellants objected; the respondent was not asserting a right of property in, or
damaging any bottle; and therefore, the appellants claim failed.
Per Lord Dunedin:
It is a novelty to me to say that A can be compelled by law to do or refrain from
doing something lawful in itself, and that of his own prejudice, in order to help B
enforce his contract with C.

Ward v. McCauley
Must prove that you were in possession of chattel at time of interference. Fact that
you do not have possession in your physical grip does not mean that you are, not in
possession. If your car is parked and you are in lecture room, still in possession.

Hamps v. Darby
Facts: The plaintiff, the owner of certain homing and racing pigeons, released them
from theirdovecote for exercise, and they alighted on the defendant's land and fed
on his growing peas.To protect the peas, the defendant shot at the birds killing four
and wounding one. In an actionby the plaintiff for the damages for the destruction
of and injury to the pigeons, the plaintiffcontended there could be no property in
homing pigeons and even assuming that there could besuch a property, the
destruction and wounding of the plaintiffs birds were justified.
Held: i.) So long as the animals retained an animus revertendi [the intention of
returning],the plaintiff could claim a special property in them, the appropriate form
of action for him totake in respect of their destruction and wounding being trespass
to goods. If animals haveacquired the habit of leaving the owner and returning on
their own accord, then the ownerretains physical control.
ii.) There was evidence that the defendant had failed to prove that were no
practicable meansother than shooting it, stopping the birds doing damage to his
crops or that he had actedreasonably in regarding the shooting as necessary to
protect the crops, and therefore, theplaintiff was entitled to succeed.
Blackstone's Commentaries:A qualified property may subsist in animals, by a
man's making them tame by art, industry andeducation, or by so confining them
within his own immediate power, that they cannot escapeand use their natural
liberty.
For our law apprehends the most obvious distinction to be between such animals as
we generally so tame, and are therefore seldom, if ever, found wandering at large,
which it calls domitaenaturaeand such creatures as are usually found at liberty,
which are therefore supposed to be more feraenaturae though it may happen that
the latter shall be sometimes tamed and confined by the art and industry of man.
Such as a deer in a park, hares or rabbits in an enclosed warren, doves in a
dovehouse, pheasants or partridges in a mew, hawks that are fed and commanded
by their owner and fish in a private pond or in trunks. These are no longer the
property of a man, than while they continue in his keeping or actual possession but
if at any time they regain their natural liberty, his property instantly ceases, unless
they have animus revertendi, which is only to be known by their usual custom of
returning...The law therefore extends this possession further than the mere manual
occupation; for my tame hawk that is pushing his quarry in my presence, though he
is at liberty to go where he pleases is nevertheless my property, for he hath
animumrevertendi. So are my pigeons that are flying at a distance from their home
(especially those of the carrier kind) and likewise the deer that is chased out of my
park to forest, and is instantly pursued by the keeper or forester, all which remain
still in my possession, and I still preserve my qualified property in them but if they
stray without myknowledge, and do not return in the usual manner, it is then lawful
for any stranger to take them.
In all these creatures reclaimed from the will of their nature, the property is not
absolute but defensible; a property that may be destroyed if they resume their
ancient wildness and are found at large. For if the pheasants escape from the mew,
or the fishes from the trunk, and are seen wandering at large in their proper
element, they becomeferaenaturae again, and are free and open to the first
occupant that has the ability to seize them. But while they thus continue my
qualified or defensible property, they are as much under the protection of the law
as if they were absolutely and indefensibly mine, and an action will lie against any
man that detains them from me, or lawfully destroys them.
Commentary:If domesticated animals in one's possession have acquired the habit
of going out of the owner's sight and returning later (animus revertendi - the
intention of returning), the owner is in possession even though he has no physical
control over them. Such animals, example pigeons in a dovecote, continue to be
the property of their owner until they lose the animus revertendi. -Imagine a
situation where a man receives a new assignment of pigeons and the next morning
he releases them with the old ones. While the birds are away, someone interferes
with one of the new ones. The owner is threatening to sue. Can the owner sue for
possession. What are his chances of success?

Wilson v. Lombank
Facts: The plaintiff unsuspectingly bought a Renault Daphine car from a person
who had no title to sell it. He took it to his garage for repairs. He had dealt with
this garage for eight years on monthly credit terms. When the repairs had been
completed the car was placed on the forecourt of the garage and the defendants
drove it away, mistakenly believing that they had a legal right to do so. In fact
neither the plaintiff nor the defendants had a title to the car and when they
discovered the true position, the defendants delivered the vehicle to the true owner.
The plaintiff sought damages for trespass.
Held: Notwithstanding that the defendants had delivered the car to the true owner,
they were liable in trespass to the plaintiff who was thus entitled to recover
damages in full value of the car together with cost of repairs, for in the
circumstances the plaintiff had not lost possession of the car while it was at the
garage, nor had the garage acquired a lien on it in view of the course of dealings
between garage and plaintiff.

White v. Morris
Where goods are assigned as security for an advance of money, upon trust to
permit the assignor to remain in possession of them until default in payment at the
time stipulated, and upon further trust to sell them upon such default being made, -
the assignee has a sufficient possession to enable him to maintain trespass against a
wrongdoer.
Facts:Goods were assigned as security for a loan upon trust to permit the assignor
to remaininpossession until default in payment.
Held: The assignee could sue in trespass while the goods were still in the assignor's
Commentary:It may be assumed, despite lack of authority for such a general
proposition, that all trustees maysue for trespass to goods in the hands of a
beneficiary on the basis that they share possessionwith him.

National Coal Board v.Evans

Facts: The first defendants, who obtained a contract from a council to erect
workshops on its land, sub-contracted the second defendant to excavate a trench
across the land for purposes of drainage. Without the knowledge of the Council,
the plaintiffs predecessors had placed an electric cable under the land, running
across the line of the proposed trench at the same depth as the trench would be at
the spot, and carrying electric current to a place belonging to the plaintiffs. During
the course of the excavation, a mechanical excavator, driven by a workman of the
second defendants, broke the concrete cover of the cable and damaged the cable.
As a result of the accident, water seeped into the insulating cover of the cable and
an explosion occurred and cut off the electric supply carried by the cable. The
plaintiffs sued the defendants in trespass and negligence.
Held: The defendants were not guilty of negligence. As the plaintiffs were at fault
in the matter, the accident being attributable mainly to the conduct of their
predecessors in placing the cable on the council's land without the knowledge of
the council, and as the defendants were entirely free from fault, having merely
done what they were required by the Council to do, there was no trespass by them.
 CONVERSION
Lancanshire and Yorkshire Co. v. MacNicoll
Conversion was defined by Atkin J. in Lancanshire and Yorkshire Co. v.
MacNicoll thus, "It appears to me plain that dealing with goods in a manner
inconsistent with the rights of the true owner amounts to a conversion, provided
that it is also established that there is also an intention on the part of the defendant
in so doing to deny the owner's right or to assert a right which is inconsistent with
the owner's right." (This definition was approved in Oakley v. Lyster120) -Atkin J.
goes on to point out that where the act done is necessarily a denial of the owner's
right or an assertion of a right inconsistent therewith, intention does not matter.
Another way of reaching the same conclusion would be to say that conversion
consists in an act intentionally done inconsistent with the owner's right, though the
doer may not know of or intend to challenge the property or possession of the true
owner.
For a plaintiff to succeed in an action for conversion,
-The plaintiff must prove intentional conduct resulting in an interference with his
goods(Simmons v. Lilfystone, Ashby v. Tolhurst, Williams v. Geese)
- The plaintiff must prove that the interference is in such a manner exhibiting
intention to deny the plaintiff title to the chattel or to set up a rival title which is at
variance with plaintiffs ownership {Penfold Wines Proprietary)
-The plaintiff must prove that he had either possession or the right to immediate
possession {Gordon v. Harper, Roberts v. Wyatt)

Fouldes v. Willoughby
Facts: The plaintiff and his 2 horses embarked on the defendant's ferry boat. The
defendanttold the plaintiff that because of his misconduct, he must remove the
horses but when theplaintiff refused to do so, the defendant took the horses from
him and put them on the landingslip. The plaintiff remained on the ferry and the
horses, which were turned loose on the road,were sold by the person who took
possession of them.
Held: He was without a remedy as a mere wrongful asportation of a chattel, does
not as ageneral rule, amount to a conversion.Lord Abinger C.B.: "In order to
constitute a conversion, it is necessary either that the partyhaving the goods should
intend some use to be made of them, by himself or by those for whomhe acts or
that, owing to his act, the goods are destroyed or consumed, to the prejudice of
thelegal owner. As an instance of the latter branch of the defense, suppose, in the
present case, thedefendant had thrown the horses into the water, whereby they
were drowned, that would haveamounted to an actual conversion... or of a person
throwing a piece of paper in the water for inthese cases, the chattel is destroyed in
quality, or destroyed altogether. But it has never yet beeneld that the simple act of
the removal of a chattel, independent of any claim over it, either infavor of the
party himself or any one else, amounts to a conversion of the chattel."
Commentary:It was held that slightest act liable in trespass. This case supports the
orthodox view that in anaction in trespass to chattel, it is sufficient to show
trespass. Law remains that trespass tochattels is actionable per se.
This case also brings out the important elements to look out for as to what
constitutes conversion.

Fouldes v. Willoughby(Alternate)
Facts: The defendant was the manager of a ferry from B to C, and that the plaintiff
embarked on board the defendant's ferryboat at B, having with him horses for the
carriage of which he had paid the usual fare when the defendant told the plaintiff
that he would not carry the horses over the water, and that he must take them on
shore. The plaintiff refused to do this, and the defendant, took them from the
plaintiff and put them on shore and they were conveyed to a safe place by the
defendant's brother. The plaintiff remained on board and was conveyed over the
water.
On the following day, the plaintiff sent for the horses but they were not delivered;
a message was however afterwards sent to the plaintiff, that he might have the
horses on sendingfor them and paying for their keep but that if he did not send for
them, they would be sold to pay for the expenses. The latter was accordingly done
and this action was brought. The defense set up was that the plaintiff having
misconducted himself on board, the horses were put on shore in order to get rid of
the plaintiff by inducing him to follow them.
The learned judge in summing up told the jury that the defendant, by taking the
horses from the plaintiff and turning them out of the vessel, had been guilty of
conversion unless they thought the plaintiffs conduct justified his removal from the
steam boat, and he had refused to go with the horses.
Held: That this amounted to a misdirection as a mere wrongful asportation of a
chattel does not amount to a conversion unless the taking or detention of the chattel
is with intent to convert it to the taker's own use, or that of some third person, or
unless the act done has the effect of destroying or changing the quality of the
chattel.

Halaby v. Halaby and Others

Facts: The plaintiff was an agent for the partnership firm of Halaby Bros. He
removed goods belonging to the partnership's store atNnandom to his own store. In
1951, the West African Court of Appeal ordered that the partnership properties be
sold, and the Divisional Court in pursuance of this direction, ordered the plaintiff
to deliver up the said properties of the second defendant who had been appointed
receivers and managers. The defendants went to Nnandom to carry out the Court's
instructions.
They discovered that goods were missing from the firm's partnership's store and
traced them to the plaintiffs store where they also found the stock books of the firm
and the safe from the firm's store. The goods were sold at a public auction by the
third defendant and the safe was taken to Kumasi where it was later opened before
the registrar of the High Court. Held: It is clear that the unspecified quantity of the
plaintiffs goods which might accidentally have been included in the goods sold
cannot support a claim for damages against the defendants until it is proved that it
was the fault of the defendants. In this case the evidence discloses that whatever
trespass to the plaintiffs own goods might have been committed was an involuntary
act. In our view, as the trespass complained of in this case was involuntary and
accidental, the defendant cannot be held liable for any damage the plaintiff may
have suffered, as such damage was in the main attributable to the plaintiffs own
fraudulent act.
National Coal Board v. Evans
Facts: While digging a trench on land owned by a city council, the defendants
damaged an underground electric cable belonging to the plaintiffs. Neither the
County Council nor the defendants knew of the existence of the cable.
Held: The defendants were not liable in trespass as the main cause of the accident
was the placing of the cable by the plaintiffs predecessors in title in the land of the
county council without their knowledge and consent.
Armory v. Delamirie
Facts: A chimney sweeper's boy was chimney sweeping and found a jewel. He
handed it to anapprentice of a goldsmith to be valued. He removed the jewel from
its setting and handed thesetting back to the boy and offered him and for the jewel.
The boy refused the offer for thejewel whereupon the goldsmith declined to return
the jewel to him. The boy sued.
Held: Finding for the boy against the goldsmith in trover, the court held "that the
finder hassuch a property as will enable him keep it against all but the rightful
owner." A finder,sufficient to maintain action against anyone else but owner.

Gordon v. Harper
An owner who is not in possession cannot maintain an action in conversion for
chattel
Facts: The plaintiff let his mansion-house and furniture to one Biscoe. The sheriff,
the defendant, wrongfully took the furniture in execution and the plaintiff sued him
in conversion. Held: The action would fail as the plaintiff had parted with his right
of possession; he had let the goods to Biscoe.

Ahiablev.Dosu
The owner of the land is prima facie owner of animals on land unless he has
divestedhimself of ownership by sale, gift etc.
Facts: The plaintiffs claimed that the defendants trespasseduport his cassava farm
and uprootedthe cassava and sold it for their benefit. The first defendant claimed
the farm as his personalproperty that he had cultivated in a piece of land belonging
to his grandfather. The Court of firstinstance gave judgment for the defendant. The
plaintiffs appealed and had judgment and thedefendant appealed. The appeal was
dismissed.
Held: The owner of the land is a prima facie owner of chattels and things found in
it, unless hehas divested himself of ownership through abandonment, gift or sale.
The presumption isapplicable to crops found on the land. There being no evidence
that the plaintiff had divestedhimself of ownership, and as such the land and the
cassava thereon were his.

South Staff Water Corporation v. Sharman

Facts: The plaintiffs, owners of land covered by a pool employed the defendants to
clean outthe pool. His workmen found 2 gold rings at the bottom and refused to
give it to plaintiff, whoin turn, sued for detinue.
Held: Given to plaintiff on basis of rule in Armorie v. Delamirie-When you own
land, you are in possession of anything in it. This is rebuttable but untilrebutted,
law will assume that you are in possession.
Lord Russell CJ: (Quoting 'Pollock and Wright')
"The possession of land covers with it in general, possession of everything which
is attached toor under that land, and, in the absence of a better title elsewhere, the
right to possess it also."
Dictum by Russell CJ:
"Where a person has possession of house or land, with a manifest intention to
exercise controlover it and the things which may be upon or in it, then, if
something is found on that land,whether by an employee of the owner or by a
stranger, the presumption is that the possession ofthat thing is in the owner of the
locus in quo."

Elwes v. Brigg Gas

Facts: Plaintiff leased a piece of land for 99 years. Leasor reserved to himself.
Defendant towhom land had been leased was demarcating it in order to install
some equipment in house.Discovered six feet below surface, a pre-historic boat
judged to be about 2,000 years. Theystarted fighting about this" pre-historic boat.
Held: Plaintiff had lawful possession of the boat except someone else with better
interest and itdid not matter that not aware of existence and that defendant only had
right to excavate the clayon the land.

London Corp. v. Appleyard

Facts: Plaintiffs leased their property to X. Transaction was underwritten by Y. X
contracts with Z to put up building for him. Two workmen of Z while working on
property found safe that had been built into wall that contained an amount of
English pound notes found in 1943. True owners of money never found.
Held: Appellants were in possession because they owned the land. What these 3
cases tell us is that principle we dealt with as we dealt with trespass to land - owns
up to heavens...-comes into play here. Possession of the premises prevails against
finder.
Commentary:An unfailing principle is that rights of true owner will always prevail
but in absence of owner, will be for one that is in possession of the land. In all
these 3 cases (South Staff Water Corporation v. Sherman, London Corp. v.
AppleyardElwes v. Brigg Gas Co.), chattel found attached to land.

Bridges v. Hawkesworth
Facts: The plaintiff, a traveler, visited the defendant's shop on business, and as he
was leavinghe noticed a parcel on the floor inside the shop which he picked up and
showed to the shopman.On being opened, it was found to be bank notes. The
plaintiff informed the defendant andrequested him to keep the notes until the
owner appeared to claim them. The defendantadvertised the discovery of the notes
in a newspaper. Three years having elapsed and no ownerhaving appeared to claim
them, the plaintiff applied to the defendant for the return of the notes,offering to
pay for the expense of the advertising and to indemnify him in the case the
realowner should afterwards appear, but the defendant refused to deliver the bank
notes to theplaintiff.
Held: Notes were never in custody of defendant nor in his house and has come
under noresponsibility except that given to him by the finder.
Commentary:Difference here is that notes were found on the floor so principle
does not apply. This principleis applicable to things in or attached to land.

Hannah v. Peel
Facts:The plaintiff, a Lance-Corporal in the Royal artillery, was stationed in a
house whichwas owned by, but had never been actually occupied by, the
defendant. During his stay, theplaintiff accidentally discovered a valuable brooch
in a wall crevice in an upstairs room. Thereal owner of the brooch could not be
traced and the parties disagreed as to which of themshould have it.
Held: The plaintiff was entitled to the brooch as the defendant had never been in
physicalpossession of the house and had no knowledge of the existence of the
brooch until it was foundby the plaintiff.

Hibbert v. McKiernan
Facts: Plaintiff went to a golf club and took 8 golf balls that had been previously
lost andabandoned by their original owners. He was aware that there were police
officers stationed atstrategic places to keep people like him away. The club had
taken steps to exclude trespassersfrom the links and to prevent taking of balls but
the officials of the club did not know at anygiven moment the position or number
of balls that might be lying on their property.
Issue: Whether the defendant acquired a title to the balls by finding them.
Held: Every householder intends to exclude thieves from his property and this
confers on him aspecial property in goods founded on his land, which is sufficient
to support an indictment if thegoods are taken therefrom with felonious intent.. The
trespasser was rightly convicted as theclub members retained a special property in
the lost balls.

Lord Goddard CJ:

"We are here dealing with a charge of lacenary, with a thief who took the balls
animofurandinot with an honest man who, finding an article on the land of another,
proclaims that fact with a view to discovering the owner if he can, and when no
owner comes forward, asserts a possessory title against the owner of the land on
which it was found...Every householder or landowner means or intends to exclude
thieves and wrongdoers from his property and this confers on him a special
property in goods found on his land sufficient to support an indictment if the goods
are taken therefrom, not under a claim of right, but with a felonious intent.
llustration:A meaning to give his neighbor B a present of game, takes a brace of
pheasants to the latter's house. Finding the door open he leaves them in the hall,
and thereby abandons both his property in possession of them. B has at the moment
gone out to post a letter so does not know of A's gift. C, who has seen A's action,
enters the house before B returns and takes the game. Can it be doubted that C is
guilty of lacenary and that the property can rightly be laid in B?

Bloxam v. Sanders
Where goods were sold on credit, the buyer could ordinarily sue the seller in
conversion if he wrongfully sold them to a third party, but that if the seller
exercised his right of stoppage in transitu upon the buyer's becoming insolvent, the
buyer could no longer sue. In the absence of credit terms, the buyer, although he
may have the property in the goods, has no right to immediate possession until he
tenders or pays the price.

Ashby v. Tolhurst
Facts: The plaintiff paid is to leave his car in the defendants' car park but the
vehicle was stolen by a person who told the defendant's employee, the car park
attendant, that he (that person) was the plaintiffs friend. He was in fact a stranger
and the plaintiff sought damages for conversion.
Held: He could not succeed as, inter alia, the defendant's employee had not
purported to deal with the car in a way inconsistent with the rights of the plaintiff.

Ashby v. Tolhurst (Alternate Version)

Facts: The plaintiff drove his motor car on to a piece of ground belonging to the
defendants, paid an attendant who was in the defendant's employment, received a
ticket and left the car with its doors locked. He returned later to find that his car
was no longer there, the attendant saying that he had given it to the 'plaintiffs
friend,' who was in fact a stranger. The stranger did not produce any ticket. The
ticket given to the plaintiff called a "car park ticket" contained thefollowing words,
"The proprietors do not take responsibility for the safe custody of any cars
orarticles there, nor for any damage to the cars or articles however caused, nor for
any injuries toany persons, all cars being left in all respects entirely at their owner's
risk. Owners arerequested to show ticket when required."
Held: The relationship between the parties was that of licensor and licensee, and
not that ofbailor and bailee, and there was therefore no obligation upon the
defendants towards theplaintiff in relation to the car left in the car park.
2.) Assuming that there was a contract of bailment and that the defendant had
authority todeliver possession of the car and that he did so quite honestly under a
mistake, the conditions onthe ticket were wide enough to protect the defendant.
3.) There could not be implied into the contract a term that the car should not be
handed overwithout production of the ticket.

Hollins v. Fowler"'
Principle: The defendant who meddles with a chattel does so at his or her own risk
- That you are not aware is irrelevant. Once you deal with chattel that turns out to
be for someone else, you have done something that is an affront to right of true
owner so it is conversion. Conversion is a strict liability tort.
Facts: The appellants bought cotton from one Barley, intending to act as brokers
and re-sell the cotton to any of their customers whom it might suit, charging only a
commission, but having no immediate principal at the time of the purchase.
Subsequently, they sold the cotton to Michells. Barley had obtained the cotton
from the respondents by fraud, but the appellants were not aware of this. The
respondents brought an action of trover/conversion against the appellants to
recover the value of the cotton.
Held: Barley, having fraudulently obtained possession of the cotton, could not give
a title to it to any person to whom he purported to transfer possession, and so the
property in and legal right of possession of the cotton remained in the respondents,
the appellants having no principal at the time of the purported transfer of the cotton
to them; bought on their own responsibility, and therefore, the respondents were
entitled to succeed. Commentary:
Any person who however innocently, obtains possession of the goods of a person
who has been fraudulently deprived of them, and disposes of those goods for his
own benefit, or for that of another person, is guilty of conversion.

Elvin and Powell v. Plummer Roddis and Co.

Facts: A man ordered coats from the plaintiffs warehouse and asked that they
should be delivered to the defendants. He telegraphed the defendants telling them
the goods were brought to them in error. A man later went to the defendants and
demanded the coats. After enquiries the defendant handed the goods to the man
who could not be traced.
Held: That since the defendants were involuntary bailee and had taken reasonable
steps and without negligence, they were not liable in conversion

England v. Cowley
Facts: The plaintiff held a bill of sale over the property of the defendant's tenant.
The tenanthad also defaulted in the payment of rent. When the plaintiff came to
take possession of theproperty, the defendant told the plaintiff that he would not
allow the plaintiff to remove theplaintiffs furniture until arrears of the rent had
been paid.
Held: That to amount to conversion, it must be established that there was absolute
interferencewith the plaintiffs dominion over the chattel. In the instant case
however, the plaintiff had notso interfered with the plaintiffs possession.

Kelly C.B. observed,"When a man is not in possession he cannot be found liable in

trover unless he has absolutelydenied the plaintiffs right to possession. But where
he is in possession, any dealing with theproperty in a manner inconsistent with the
plaintiffs right amounts to conversion."
Bramwell B:"In order to maintain trover, a plaintiff who is left in possession of the
goods must prove thathis dominion over his property has been interfered with, not
in some particular way, butaltogether, that he has been entirely deprived of the use
of it. It is not enough that a man shouldsay that something shall not be done by the
plaintiff, he must say that nothing shall."

Oakley v.Lyster
Key Principle: There may be a conversion of goods even though the defendant had
neverbeen in physical possession of them, if his action amounts to an absolute
denial of theplaintiffs rights.
Facts: The defendant purported to sell land core belonging to the plaintiff.
According to thefacts, the land upon which the core laid was bought by the
defendant who then purported to sellthe core to the other persons. He also wrote
letter denying ownership to the plaintiff.Furthermore, he refused to allow sale of
the chattel to Edney.
Held: That the requirement of conversion were clearly outplayed - That the
defendant had usedthe chattel in such a way that was inconsistent with the
ownership of the plaintiff. Furthermore,he had absolutely denied ownership of the
chattel to the plaintiff by preventing him from sellingto Edney.

African Drug Co. v. Kumasi City Council

Facts: The plaintiffs as importers and retailers of pharmaceuticals, were tenants in
a marketstore under a license granted by the plaintiffs. The plaintiffs in breach of
the license, fell intoarrears of rent. The defendants forcibly locked up the market
store without notice for 45working days and thereby prevented the plaintiffs from
having access to their documentswithout which they were unable to make customs
delivery of certain pharmaceuticalconsignments. The plaintiffs therefore sued,
claiming inter alia, damages for wrongfulejectment and detention of goods.
Held inter alia: The loss of the plaintiffs of the 45 working days when the office
was locked upand the document representing the consignment of drugs, were to be
the basis for the measureof damages which the plaintiffs were entitled to in
conversion.
Wansborough v. Maton
Facts: Erected a ban on leased lands. Defendant would not allow them to take bank
and hethrew them out of premises and locked the gate.
Held: It was total. Access was totally denied so defendant would be held liable. He
hadconverted ban by denying access and the denial was total.

DETINUE
Any legally unjustifiable or unjustified detention of a person's goods constitutes
detinue.
1.) Detention of the plaintiffs goods.
2.) Detention was unjustifiable
3.) Plaintiff demanded the goods back and was refused.
Sorrell v. Paget
Facts: The plaintiff and defendant had adjoining farms alongside the main London
to Dover railway line. The plaintiffs heifer kept straying. One morning, the
defendant found it on the railway line, drove it off, and delivered it with a protest,
to the plaintiffs servants. That very evening at dusk the defendant saw it on the
railway line again, telephoned the station and had the Golden Arrow stopped.
He drove the heifer into his own stubble field, where it went to sleep. During the
night or early morning, the beast left that field, went along the highway, and
entered a field where thedefendant kept his T.T. herd. The defendant removed it,
put it in a barn and fed it on hay and water. He did not inform the plaintiff. Four
days later the plaintiff discovered its whereabouts and sent two men to fetch it. The
defendant demanded 2 pounds Salvage and one shilling per day for keep..
No money was offered to him, so he kept the heifer. Three days later the heifer
died, having been driven mad, according to the plaintiff, by the defendant's
negligence.
Held:
a.) Defendant did not commit any wrong when he took possession of the plaintiffs
heifer. It was getting dark at the time and defendant's action was in the interests of
plaintiff and his heifer and of the safety of the public using the highway.
b.) Defendant was not liable for impounding heifer in his barn because he was
anxious to keep his herd free from all possible infection.
c.) Defendant was not wrong in refusing to hand over the heifer because no actual
money was offered to the defendant for keep or damage. It was the duty of the
plaintiff to make a tender in respect of any damage done by the animal. He never
did make a tender and until the tender was made, the defendant was justified in
keeping the heifer in the barn.
d.) Defendant was not negligent in keeping heifer in barn a week before it died.
Plaintiff had not got anywhere near proving that the animal died as a result of the
defendant's fault. The barn was a large, well-ventilated one and a suitable place to
impound the animal.

General and Finance Facilities Ltd. v. Cooks Cars

Facts: In an action for detinue relating to a mobile crane, the plaintiffs obtained
judgment forthe return of the crane or the recovery of its value and damages to be
assessed.
Held: The plaintiffs were entitled to an assessment of the value of the chattel and
of thedamages for its detention in order that they might select and enforce their
appropriate remedies.An action in detinue today may result in a judgment in one of
three different forms:
i.) For the value of the chattel as assessed and damages for its detention, or
ii.) For the return of the chattel or recovery of its value as assessed and damages
for itsdetention, or
iii.) for return of the chattel and damages for its detention.

Houghland v. R.R. Low (Luxury) Coaches Ltd.

Facts: The luggage of a party returning by motor coach was locked in the boot of
the coach until arrival at a temporary stop, when the coach remained unattended
for 3 hours in the dark while waiting for a relief coach, following a failure of the
engine to start. The luggage was then transferred by the passengers to the boot of
the second coach, the first coach driver supervising the stowing in the second
coach, but no one supervising the removal of the luggage from the first coach. The
boot of the second coach was locked and was only unlocked thereafter to remove
the luggage of individual passengers as they left the coach during the journey. At
the destination, the suitcase of one of the passengers was missing. In an action in
detinue and for negligence against the coach proprietors, it was found that the
suitcase was the subject of agratuitous bailment, and awarded the passenger
damages for its loss. The plaintiff appealed and was dismissed.
Held: By proving the failure to return the suitcase, the passenger established a
prima facie case, whether in detinue or in negligence, which would stand unless
rebutted. It had not been rebutted, for the coach proprietors had not shown that the
loss occurred notwithstanding that all reasonable care had been taken, and,
accordingly, the coach proprietors were liable.

Strand Electrical and Engineering v. Brisford Entertainments Ltd.

Facts: The defendants contracted to sell a theatre to the Bedfors Theatre and the
latter was totake possession before the contract was completed. The company also
entered into a contractwith the plaintiffs who supplied portable switchboards to the
company pending the manufactureof permanent ones. The company sought to
maintain the portable ones and the plaintiffs thendemanded the payment of the
portable ones. Later, the defendant took possession of the theaterand denied
plaintiffs to the switchboard when the plaintiffs demanded the return. The
plaintiffssued claiming the return of their equipment or its value, and damages for
the period of its detention.
Held: i.) Where a plaintiff uses his chattel for hiring through the defendant makes a
beneficialuse of the chattel, during the period of the detention, the plaintiff is
entitled to recover the fullmarked sale of hire from the period of the detention.
ii.) Where there is a doubt as to plaintiffs ownership, the defendant is entitled to a
reasonabletime for investigation.
iii.) Where there is no doubt as to ownership, plaintiff is not entitled to this right.

Strand Electrical v. Brisford Entertainments Ltd. (Alternate Version)

Facts: In the course of their business, the plaintiffs hired to the defendants some
switchboards. In detinue, the plaintiffs claimed the return of the goods and
damages for their detention. Held: Besides ordering the return of the goods, the
court awarded damages on the basis of a reasonable living charge for the entire
period of detention until judgment. Nor were the damages to be limited to the loss
of profit of the plaintiff; the fact that for some of the period during which the
defendant detained the equipment the plaintiff would not have been able to find
another hirer was irrelevant.

Yeboah v. Kwakye
Facts: The defendant wrongfully seized the plaintiffs vehicle and handed it over to
the police.The plaintiff brought an action in conversion against the defendant and
elected to be paid thevalue of the car instead of its return. The trial judge found for
the plaintiff and the defendantappealed.
Held: i.) That the same principles do not apply in the assessment of damages in
conversion as in detinue. In an action for conversion, the plaintiff is ordinarily
entitled to the value of the chattel at the date of the conversion as well as damages
for loss of profits during the period between the date of wrongful seizure and the
date of conversion, the date of formal demand and refusal being often as evidence
of the date of conversion.
ii.) The plaintiff in an action for detinue, where the chattel detained is eventually
not returned, is entitled to the market value of the chattel together with the full
market value of hire, up to the date the action is instituted or judgment obtained,
this being the consequential loss following on the destruction or loss of the chattel.

DEFENCES TO THE
INTENTIONAL TORTS TO
THE PERSON AND
PROPERTY
Inevitable Accident
Fowler v. Lanning
Facts: The plaintiff claims damages for trespass to the person committed by the
defendant. He alleges that the defendant shot him and he sustained personal
injuries. The defendant denied theallegation of fact and objected that the statement
of claim disclosed no cause of action in thatthe plaintiff had not alleged that the
shooting was either intentional or negligent.Held: The statement of claim disclosed
no cause of action against the defendant, because in anaction for trespass to the
person, the onus of proof on the defendant's intention or negligencelies on the
plaintiff and the plaintiff either must allege that the shooting was intentional on
thepart of the defendant, or must allege that the defendant was negligent, stating
the facts allegedto constitute the negligence.

Per Curiam
An action for trespass to the person does not lie if the injury to the plaintiff,
although the direct consequence of the act of the defendant, was caused
unintentionally and without negligence on the part of the defendant; this principle
applies both to trespass to the person committed on the highway and to trespass to
the person committed in any other place. The onus of proving negligence, where
the trespass is unintentional, lies on the plaintiff whether the trespass is committed
on the highway or elsewhere.

Letang v. Cooper
Facts: The plaintiff while sunbathing on a piece of grass at a hotel where she was
on holiday, was injured by the defendant. He did not see her and the car went over
her legs. More than 3 years later, the plaintiff sued the defendant claiming damages
for loss and injury caused to her by the defendant's negligence in driving his car or
the commission by him of a trespass to the person by the plaintiff. The Limitations
Act provided that such an action in negligence could be brought within 3 years.
The sole question was whether the action was statute barred.
Held: The plaintiffs cause of action was an action for negligence and as such was
statute barred under the Law Reform (Limitation Actions) Act, 1934.
Lord Denning, M.R.: "When the injury to a plaintiff is caused by the defendant's
intended act, the cause of action is trespass to the person, when the act is not
intended, a plaintiffs only course of action is negligence."

Mistake
Mistake, whether of law or of fact, is generally not a ground of exemption from
liability in tort. However, if a mistake is committed in circumstances where a
reasonable man would have done what the defendant did, then the mistake can be a
defense. Thus the plaintiff in malicious prosecution must prove lack of reasonable
or probable cause for the prosecution, and in false imprisonment the defendant may
be able to escape liability if he can show that he had reasonable cause to believe
that the plaintiff was guilty of an offence.
A judicial officer may be immune from liability for his judicial acts even though he
acts under a mistaken belief as to his jurisdiction. An auctioneer who innocently
sells A's goods in the honest and reasonable belief that they belong to B on whose
instruction he sells them, has been held liable to A. A surgeon who as a result of an
administrative mix-up, carries out a wrong operation is liable in trespass to the
patient.

Consent
There are many occasions on which harm may be inflicted on a person for which
he has noremedy in tort because he consented, or at least assented, to the doing of
the act which causedhis harm. As a general rule, anyone who consents to an act
cannot complain of the injury in law.This is expressed in the maxim volenti non fit
injuria [That to which a man consents cannot bean injury]. The maxim is subject to
certain safeguards:
-Consent must be given freely
-It must relate to the act complained of
-Consent may be by way of an express statement or may be implied from the
conduct.
Taking part in contact sports - football, boxing etc. -and presenting one's body for
treatment, for example, convey consent. Whether consent is obtained expressly or
impliedly is a question of fact.
If consent is obtained by fraud, duress, undue influence or any form of inducement
or pressure, it is no consent in the eyes of the law. But once the plaintiff is shown
to have consented to the act, he cannot complain after the act because he is not
happy with the consequence.
Hegarty v. Shine
Facts: Plaintiff was a woman. She sued defendant male of breach to marry her,
assault, andinfliction of veneral disease (syphilis). Judge misdirected the jury and it
went to Appellate Court.
Held: The appellate court said that sexual intercourse with female cannot be assault
andevidence showed that they had lived as concubines for a very long time. What
did the womanthink was taking place/man wanted to do with her? On evidence,
she understood and so therewas no battery, no trespass. Her action failed in appeal
because she knew what she was agreeingto.
Commentary:There is a distinction between the Act and its consequences. Once
you consent to the Act you complain of, the consequences are of no moment.

R. v. Williams
If fraud relates to act, then no consent.
Facts: Appellant was choirmaster of Presbyterian church. He was supposed to
teach 2 girls,aged 16 and 19, singing and voice production. On 2 occasions, when
he taught 16 year old, hehad sexual intercourse with her. With the 19 year old, he
inserted his fingers into her privateparts - indecent assault. He was charged with
rape and argued that the girls had consented.
On the first day, he had told the 16 year old that she was not singing as she was,
put her on a settee and put on lower part of her abdomen, an old, defective
instrument and asked girl to take a deep breath, thrice. He looked at instrument and
purported to check it upon which he then had sexual intercourse with her. He said
he was making an 'air passage' and that the girl's mother was aware, and that it was
quite alright, and he swore by God's name. The girl believed him that he was
making an air passage.
Held: Appeal was dismissed on evidence that girl had not consented to sexual
intercourse. A consent or submission obtained by fraud is not a defense to a charge
of rape or cognate offences. It is a misdemeanor to procure a woman by false
pretences, to have unlawful carnal connection.
Lord Hewart C.J:"The appellant pretended that what he did was a necessary
operation. The girl never consented to an act of sexual intercourse but because she
thought it was a necessary operation."
Commentary:In the case of children, consent given on their behalf by their parents
or guardians would be a valid consent. If consent is obtained by authority or by
threat of force or the application of actual force, then it is not a valid consent.

Latter v. Braddell
Facts; The accused, a house maid, was accused of being pregnant. A doctor was
invited by hermistress and master. She was made to undress in the midst of her
objection (she cried) and anexam was done on her. She was not pregnant. She
brought an action. At the trial, Lindley J.withdrew from the jury the case against
the mistress and the jury found for the doctor. Plaintiffobtained a rule nisi for a
new trial.
Held: Court of Appeal upheld decision by the Court.
Latter v. Braddell (Alternate)
Facts: The plaintiff, a housemaid, was suspected by her mistress of being pregnant.
The mistress had called a doctor and the plaintiff submitted reluctantly to the
doctor's examination which was accompanied by her sobs and protests. The doctor
found that the plaintiff was not pregnant. In an action against the mistress and her
husband (Captain and Mrs. Braddell), and the doctor for assault, the trial judge,
Lindley J., withdrew the case against Captain and Mrs. Braddell from the jury. The
jury returned a verdict for the doctor. A rule was granted for the defendants to
show cause why the verdict should not be set aside and a new trial granted. On the
question whether the rule should be made absolute,
Held: Lindley J:"The plaintiffs case cannot be higher than this, namely that,
without consulting her wishes, her mistress ordered her to submit to be examined
by a doctor, in order that he might ascertain whether she (the plaintiff) was in the
family way, and that she the plaintiff complied with that order reluctantly - that is
sobbing and protesting - and because she did not know what else to do. There was,
however, no evidence of any force or violence, nor of any threat of force or
violence, nor of any illegal act done or threatened by the mistress beyond what I
have stated; nor did the plaintiff in her evidence say that she was in fear of the
mistress, or of the doctor, or that she was in any way overcome by fear.
She said she did not consent to what was done but the sense in which she used this
expression was not explained, and to appreciate it, regard must be had to the other
facts of the case. The plaintiff had it entirely in her own power physically to
comply or not with the mistress' orders, and there was no evidence to show that
anything improper or illegal was threatened to be done if she had not complied. It
was suggested that her mistress ordered the examination with a view to see
whether she could dismiss her without paying her, her month's wages. But there
was no evidence of any threat to withhold her wages, nor of any conversation on
the subject of wages, until the plaintiff was paid them on leaving.
The question, therefore, is reduced to this; can the plaintiff, having complied with
the orders of her mistress, although reluctantly, maintain this action upon the
ground that what was done to her as against the will or might be properly so
regarded by a jury? I think not. It is said that the jury ought to have been asked
whether the plaintiff in effect gave her mistress leave tohave her examined, or
whether the plaintiffs will or mind went with what she did. But in my opinion, such
questions inadequately express the grounds on which the defendants can be held
liable. The plaintiff was not a child. She knew perfectly well what she did and what
was being done to her by the doctor.
She knew the object with which to be examined her, and upon the evidence there is
no reason whatever for supposing that any examination would have been made or
attempted if she had told the doctor she would not allow herself to be examined.
Under the circumstances, I am of the opinion that there is no evidence of want of
consent as distinguished from reluctant obedience or submission to her mistress'
orders and that in the absence of all evidence of coercion, as distinguished from an
order which the plaintiff could comply with or not as she had done, the action
cannot be maintained."
Commentary:Without express or implied consent, all medical treatments will
amount to trespass especially surgical operation. The law allows some laxity to
medical personnel. If a doctor tells you to undress and lie down without explaining
the nature of the examination, you can sue him in trespass. If he examines you
beyond your complaint, it is trespass.

Beatv v. Ilingworth
Facts: Plaintiff was going to be treated and said if both ovaries are diseased, do not
remove.The doctor removed them anyway whereas fiancee left her. She sued the
doctor.
Held: If you play back conversation, you can say that she consented to doctor's
statements.Doctor said, "You can be sure I will not remove anything I can help."
Verdict in favor ofdoctor.

SELF DEFENCE
The defendant may avoid an action in trespass by showing that the act done to the
plaintiff was done in defense of oneself, of one's property, and of those whom one
is bound to protect. The defendant must prove two things.
1.) That in the circumstance it was reasonable to defend himself.
2.) That he used reasonable force. There is a distinction between self-defense and
revenge. For example, if a man gives you a slap and whilst going you give him a
hefty slap, it is revenge. It is a question of fact whether violence done by way of
self-protection is proportionate to warding off the harm which is threatened. One
is, for instance, not bound to wait until a threatened blow falls before he hits in self
defense; thus the blow may be justified when the assailant does no more than shake
his stick at the defendant, uttering taunts at the same time. Caution: Don't kill an
ant with a sledge hammer.

Cockroft v. Smith
Key Principle: Self-defence will be a justification to an action in battery if the
force used is reasonable.
Facts: The plaintiff, Cockroft, was the clerk of the court. During, a scuffle in court
he ran his forefinger towards Smith's eyes. He sued Smith, who bit off his finger
during the incident, and the question was whether self-defence was a proper
defence.
Held: There was use of unreasonable force for a man "in a case of small assault,
give a violent and unreasonable return." - Holt CJ.
What you do must be proportional. Holt noted that "...hitting a man a little blow
with a little stick on the shoulder, is not a reason for him to draw a sword and cut
and hew the other..."

Lane v. Holloway
Facts: The plaintiff and the defendant lived in the same yard. At 11pm one evening
theplaintiff, a retired gardener aged 64, after returning from a public house, was
talking to a friendin the yard. Hearing this, the defendant's wife called out "You
bloody lot." The plaintiff replied,"Shut up you monkey faced tart." The defendant,
hearing this, came outside and shouted, "Whatdid you say to my wife," to which
the plaintiff replied by challenging the defendant to fight.
The defendant then punched the plaintiff very hard; he was in hospital for a month.
Held: Though self defense is permissible, it must be reasonably commensurable
with the attackwhich it presupposes. The blow given by the defendant was out of
proportion to the occasion,and he was liable in damages. The defendant gave a
"savage blow out of proportion to theoccasion."

DEFENSE OF THE PERSON OF ANOTHER

A person may justify an assault because the act complained of was in the defense
of a third party. A master may defend the servant against a trespasser and vice
versa. The right also extends to the protection of one's spouse and family and even
a stranger.

Handcock v. Baker
Facts: The defendants broke and entered the plaintiffs house in order to prevent
him from'killing and slaying his wife.' The plaintiff brought an action in trespass.
Held: The action would fail as, in these circumstances, the defendants' acts were
justifiable.

DEFENSE OF ONE'S PROPERTY

One consideration in all the defenses is the reasonableness of the force applied in
justification of the act complained of. Actual possession (whether with a good title
or not) or the right to possession of property is necessary to justify force in keeping
out or expelling a trespasser.
A person may use reasonable force to expel commission of trespass on his land or
chattel. The idea that a burglar may be shot at night, or a trespasser must always
take premises as he finds them, goes beyond what the law allows. One is not
necessarily bound to make one's premises safe for trespassers, and if burglars fall
into sawpits or are bitten by dogs, tossed by bulls or mauled by savage horses, it
may be that they must put up with it.
The defense of premises must be reasonable, that is proportionate to injuries which
are likely to inflict. Such would be broken glass or spikes on a wall, or a fierce
dog, but not deadly implements like spring guns. More latitude is permissible in
protection of premises at night than at the daytime. The defendant should not
amount to revenge.

Birdv.Holdbrook
Facts: Defendant had expensive tulips in his garden that were being stolen.
Plaintiffs fowl entered and he followed the fowl, triggering a spring gun (trap kind
of thing). Plaintiff was severely hurt.
Held: The particular way of protecting his property failed - failure of the defendant
to give notice. It was an unreasonable way of protecting property.

DEFENCE OF NECESSITY
The defendant can plead the defense of necessity provided the occasion of
necessity does not arise from the defendant's own negligence. In necessity, the
harm inflicted on the plaintiff was not provoked by any actual or threatened illegal
wrong on the plaintiffs part and that what the plaintiff did may be for the good of
the people and not necessarily for the protection of himself or his property. It is
limited to cases of imminent peril.
Examples are pulling down a house on fire to prevent its spread to other property,
destroying a building made ruinous by fire to prevent its collapse onto the
highway, throwing goods overboard to lighten a boat in a storm, medical assistance
rendered to an unconscious person, removing the plaintiffs barge because it's
frozen hard to the defendant's barge.

Mouse's Case
Facts: The plaintiff and the defendant were aboard a boat caught in a tempest. To
lighten the boat, the defendant jettisoned the goods of the plaintiff. The plaintiff
sued for the goods.
Held: His action must fail because his goods were thrown overboard in necessity.

Kirk v. Gregory
Facts: The master of the house died in a state of delirium tremens. His servants
were feastingand drinking in the house. In view of this, for safety's sake, the
deceased's sister in law deemed
it wise to remove some of his jewelry from the room where he lay dead and to put
it in another place. Some of the jewelry disappeared from this place of'safety.'
Held: The sister-in-law had acted in good faith but she was held liable to the
deceased's executor for trespass to the jewelry because there was no proof that her
interference was reasonably necessary.

Copev. Sharpe
Facts: One Chase was lessee of some sporting and shooting rights over land owned
by theplaintiff, and defendant was a gamekeeper. A serious fire broke out on the
plaintiffs land to thesouth of Chase's shooting on which there were some sitting
pheasants; although at least 50people were engaged in fighting the blaze the
defendants set fire to some patches of heatherbetween the main fire and the
shooting in the hope of stopping the fire from spreading andharming the birds. The
defendant said he did this because he did not think that the beaters knewhow to
deal with the fire, but shortly afterwards they managed to put it out. The
plaintiffbrought an action for trespass.
Held: The defendant was entitled to judgment as in the circumstances his actions
had beenreasonably necessary (See Esso Petroleum Co. Ltd. v. Southport
Corporation).

Mistake
Armstrong v. Sheppard and Short
Facts: The defendant wished to construct a sewer under a pathway to carry storm
water andfoul water from their premises to a public sewer on the highway. They
asked the plaintiff, whodid not know that the land belonged to him, for permission
to construct the sewer through hisland and he consented. When the plaintiff
discovered that the land was for him, he requested thedefendants to remove the
sewer and the manhole. The defendants failed to comply and plaintiffsued for
damages for trespass and an injunction to restrain further discharge of effluents
throughthe sewer. The trial judge awarded nominal damages and refused the
injunction. The plaintiffappealed for the injunction and defendants cross-appealed
for dismissal of charges.
Held (Appeal): i.) The plaintiff was not debarred by acquiescence from enforcing
his legalrights because he had not known that he owned the land when he assented,
but an injunctionwould not lie because the injury to plaintiff was trivial.
ii.) (Cross-Appeal): The plaintiffs oral assent to the construction of the manhole
and sewer wassufficient answer to his claim in trespass for their having been
constructed on his land, eventhough the assent was given in ignorance of his legal
title to the land. But the oral assent wasnot sufficient answer to a claim for
discharging effluent through plaintiffs land because such aright could not be
granted validly by parole, and if the plaintiff had given license for thedischarge of
the effluence, the license was not irreversible and had been revoked.

Abatement of nuinsance
In this defense, the act complained of was done to abate a nuisance. Example
where overhanging branches were cut to abate a nuisance.
Lemon v. Webb
Facts: Without giving notice to the appellant and without trespassing on his land,
the respondent cut off some branches of the appellant's trees that were overhanging
his soil. Held: He was not under a duty to seek the permission of the tree owner.
An occupier could lawfully remove those branches of his neighbor's tree that
projected above his own land and interfered with the growth of his own trees.

DISCIPLINE
A trespass may be justified because the act complained of was an act of discipline.
Example the captain of a boat or an aircraft may authorize trespass against a
passenger as an act of discipline. You can be locked up in a boat at the captain's
pleasure if you misbehave. A teacher may administer acts of 'battery' on a student
but he must ensure that the act is reasonable and that he used reasonable force.

Ryan v. Fields and Anor

Facts: The plaintiff, a schoolboy of 10 years of age attending a non-provided
school, was byreasons of his lack of discipline boxed on the ear by his
schoolmistress. As a result of the blow,which was found not to be a violent one,
the boy became deaf in one ear. The plaintiff sued theheadmistress, and the
managers of the school were made defendants.
Held: The blow, though a reasonable one, exceeded reasonable and lawful
correction.
Tucker J:"I think that this was not punishment which could be described as
moderate or such as is usualin a school and such as the parent of the child might
expect that the child would receive if it didwrong. The blow struck was moderate
in the sense that it was not a very violent blow, but aspunishment, it was not
moderate punishment, because I do not think that the proper way ofpunishing a
child is to strike it on the head or ear. Nor do I think that it was, on the
evidence,punishment which can be described as usual in this or in any other
school. Nor is it such as theparent of a child might expect that the child would
receive at a school in these days. I think thatthe punishment of the child cannot
really be justified."
ii.) The school mistress was the servant of the managers, and were jointly liable.

NUISANCE

-Interferences with a person's use or enjoyment of his land or both provided the
conduct in question is unreasonable. Person must have propriety in land.

Defences
1.) Prescription: If a person can show that has been engaging in a particular act, 20
years or more,then we can say that you have a prescriptive right to engage in that
act (Sturges v. Bridgeman)
2.) Statutory Duty (C.F.C. Corp. v. A.C.C, Manchester Corp. v. Farmworth)
3.) Consent (Kiddle v. Business Properties)
4.) Abatement (Lemon v. Webb)
Public Nuisance
A.G.v. P.Y.AQuarries Ltd.
A public nuisance is an act or omission which materially affects the reasonable
comfortand convenience of life of a class of her Majesty's subjects (per Romer
L.J.)
Facts: The defendant quarry was alleged to have been committing a public
nuisance. At theinstance of the Attorney General, an injunction was granted
restraining the defendants fromcarrying on their business in such a manner as to
cause by blasting stones and splinters to beprojected from the confines of the
quarry or to cause nuisance to their Majesty's subjects bydust and vibration. There
was evidence that nuisance from vibration and dust could be avoided by the
exercise of proper care.
The defendant purporting to make improvements in their system of blasting now
appealed against the order as to dust and vibration. They contended that the judge
had failed to distinguish between public nuisance which affected all the subjects of
Her Majesty in the area and a private nuisance affecting only a limited number of
residents which only gives rise to an action for damages.
Held: The vibrations and dust were a public nuisance and an injunction had been
rightly granted to restrain the quarry owners from carrying on their business in
such a manner as 'to occasion a nuisance to her Majesty's subjects by dust or by
vibration.' -A public nuisance is a nuisance which is so widespread in its range or
indiscriminate in its effects that it would not be unreasonable for one person to
undertake proceedings on his own responsibility to put a stop to it, but that it
should be taken on the responsibility of the community.

Esso Petroleum Co Ltd. v. Southport Corporation

Key Principle: The creator of the nuisance may be sued and liability extends
beyond thosein occupation of land themselves and covers those who create a
license while on somebodyelse's land.
Facts:Due to a steering fault and the danger of turning around in rough weather, the
master of the Inverpooly a small tanker owned by the appellants, decided to
continue on a course thatinvolved the navigation of a narrow and shallow channel.
The vessel ran aground on arevetment wall and to save the vessel and the crew
from grave danger, the master dischargedconsiderable quantities of the cargo of oil
to lighten the ship. The oil became deposited on therespondents' foreshore and they
sought to recover the expense of clearing it away.
Held: The respondents could not succeed. The fact that it was necessary to
discharge the oil inthe interest of the safety of the crew afforded a sufficient
answer to the claim based on trespassor nuisance, and the master of the ship, and
therefore the appellants, had not been guilty ofnegligence. As the respondents had
pleaded as negligence negligent aviation by the master andno more, there was no
onus on the appellants to show inevitable accident.
Commentary: The defense of necessity succeeded in this case and the defendants
were absolved of liability.

Private Nuisance
A person commits private nuisance if he does an act which either causes physical
injury to land or substantially interferes with use or enjoyment of land, or interest
subsistent in the land, or both.

Scdleigh-Denfield v. O'Callaghan
Key Principle: The overflow of water onto the land of another constitutes physical
damageand is actionable in nuisance.
Facts: The respondent college was the owner of property adjoining the appellant's
premises.The boundary of its property on that side had been a ditch and a hedge.
When a block of flatswas erected upon the western side of the appellant's premises,
the ditch had been piped in bythe County Council. No permission was obtained
from the college before erection and thecollege's worker responsible for cleaning
the ditch knew this but did not report to theauthorities. No proper guard was put at
the entrance to the pipe to prevent its being blocked bydebris.
A heavy rainfall blocked the pipe so that the appellant's garden was flooded and he
claimed damages from the college, on the grounds that the pipe was a nuisance.
Held: As nearly 3 years had elapsed before the garden was flooded, and as a person
authorized by the respondents was in charge of the ditch and cleaned it out on their
behalf twice a year, the respondents were liable because with knowledge or means
of knowledge, they suffered the nuisance to continue without taking reasonable,
prompt and efficient means of its abatement. The respondents had adopted the
nuisance by continuing to use the artificial contrivance of the conduit for getting
rid of water from their property without taking the proper means for rendering it
safe.
Viscount Maugham:The statement that an occupier of land is liable for the
continuance of a nuisance created by others, example by trespassers if he continues
or adopts it - which seems to be agreed - throws little light on the matter, unless the
words "continues or adopts" are defined. In my opinion, an occupier of land
"continues" a nuisance if, with knowledge or presumed knowledge of its existence,
he fails to take any reasonable means to bring it to an end, though with ample time
to do so. He 'adopts' it if he makes any use of the erection, building, bank, or
artificial contrivance, which constitutes the nuisance.
-He would succeed because the respondents, who knew or ought to have known of
the existence of the nuisance, permitted it to continue without taking reasonably
prompt and efficient action to abate it.

Bamford v. Turnley
Those acts necessary for the common and ordinary use and occupation of land will
not be nuisance. Question depends on surrounding circumstances- place when,
time when, mode of committing it, duration, whether permanent, temporary,
occasional, continuous.

Bradford Corporation v. Pickles

Key Principle: The defendant's motive is usually irrelevant in determining liability.
 Facts: The appellants owned a waterworks and the respondent owned land from
which water flowed naturally on to a ground from which the appellants enjoyed a
valuable supply of water.The respondent commenced operations on his land that
had the effect of discoloring anddiminishing the appellants' water supply, and they
sought an injunction to restrain his harmfulactivities that, they alleged, were
activated by malice and with a view to inducing them to buyhis land.
Held: This injunction would not be granted as the respondent's action was lawful
and no matterhow ill his motive might be, he had a right to act as he did.
Respondents had the right to usetheir land for anything. Respondents could not be
compelled to do things that would ensurethem clean water.
- This was not a case where the state of mind doing the act can affect the right to
do it. If the actwas lawful however ill the motive might be, he had the right to do it.
If unlawful he would haveno right, however good his motive was.
Lord McNaghten:"It is the act, not the motive for the act that must be regarded. If
the act, apart from motive givesrise merely to damage without legal inquiry, the
motive, however reprehensible it might be, willnot supply that element."

Christie v. Davey
Key Principle: Conduct which is motivated by malice may convert what would
otherwisehave been a reasonable act into an actionable nuisance.
Facts: The defendant, exasperated by a considerable number of music lessons
given by theplaintiff, a teacher of music, whose residence was separated from that
of the defendant only bya party-wall, interrupted the plaintiffs lessons by knocking
on the party-wall, beating on trays,whistling and shrieking. North J. issued an
injunction because the defendant had acteddeliberately and maliciously for the
purpose of annoying the plaintiff.
Held: North J:"If what had taken place had occurred between two sets of persons
both perfectly innocent, 1should have taken an entirely different view of the case."
-This interference could be restrained by injunction but it would have been
otherwise if bothparties had been perfectly innocent.

Hollywood Silver Fox Ltd. v. Emmett

Key Principle: The presence of malice in the defendant's conduct in the use of their
ownland may tip the balance towards finding the user unreasonable.
Facts: The plaintiffs were breeders of silver foxes. The defendant thinking a certain
noticeboard advertising the plaintiffs' farm was detrimental to his own property
asked the plaintiffs toremove it. The plaintiffs refused, and the defendant thereupon
instructed his son on severaloccasions during the breeding season to fire bird
scaring cartridges at a point on the defendant'sland as near as possible to the
breeding pens. As a result of such firing the foxes becamenervous, resulting in one
vixen not mating and another devouring her cubs. The plaintiffsbrought an action
for damages for nuisance and an injunction. The defendant argued that he
wasentitled to shoot on his own land and had committed no actionable wrong.
Held (McNaghten J.): The firing, though done on the defendant's own land, was a
nuisance forwhich the defendant was liable in damages and an injunction was
granted restraining him fromdischarging guns or making other noises during the
breeding season.

-Conduct was unreasonable because trying to achieve a certain objective.

Ball v. Ray
Facts: The defendant kept horses at his premises in a residential area that was
separated fromthe plaintiffs dining room by a party wall. The plaintiff brought an
action in nuisance andsought an injunction to restrain the nuisance. The injunction
was granted but the plaintiffappealed that the damages were inadequate.
Held: The court below acted on the right principle in assessing the quantum of
damages.
Appeal dismissed.

Moy v. Stoop
Day nursery case
Held: Court held that no action lay against a householder whose children were
often crying inthe nursery. Crying of children by itself was not nuisance because it
is not unreasonable to setup nursery in residential area but if children had been
crying because of neglect, then the factthat they are neglected will make it
nuisance.

Aidoo v. Adjei
It is about the nuisance of operating chop bars in residential areas.
Facts: The respondent erected a chop bar on a piece of land bought by the appellant
from acompany. The respondent argued that the land reverted back to them after
the company hadvacated. The appellant brought an action for damages for trespass.
Held: That the operation of a chop bar in a residential building of another person
constitutesnuisance and therefore the operator and those who authorized the
operation were liable indamages.

Legman v. Montagu
Facts:The plaintiff purchased a house in a partly rural, but largely residential
district. Adjoining the house was a poultry farm, and about 100 yards from the
plaintiffs house was an orchard in which the poultry farmer kept a large number of
cockerels. The plaintiff complained of being awakened at 2am by the crowing of
the cockerels till 7 or 8 am. The noise was compared to the sound of a football
crowd cheering a cup-tie. The plaintiffs threatened proceedings unless the
cockerels were removed. They were removed but after some months, thenumber of
cockerels reappeared and the farmer made no attempt to rearrange his farm so as
tokeep the cockerels further from the plaintiffs property. The plaintiff brought an
action forinjunction.
Held: A nuisance had been proved and an injunction should be granted to restrain
the defendantfrom carrying on the business of poultry breeder in this manner.

Sturdges v. Bridgman
Key Principle: The continuation of a nuisance for twenty years will, by
prescription,legalize a private nuisance (but not a public one). However, it is not
sufficient for thedefendant to show that the activity has been carried on for twenty
years; the interferencemust have amounted to an actionable nuisance for a period
of twenty years.
Facts: A confectioner and a physician occupied adjoining premises. In connection
with hisbusiness for more than 20 years, the confectioner used two large pestles
and mortars and thenoise and vibration had not seemed to the physician to be a
nuisance until he built a consultingroom at the end of his garden against the wall of
the confectioners kitchen in which the pestlesand mortar were operated. The
physician sought an injunction to restrain the use of pestles andmortars in such a
manner as to cause him annoyance.
Held: He would succeed. The confectioner could not plead that he was protected
byprescription as until the consulting room was built there had been no actionable
nuisance.
Commentary:This is a case that is hard to reconcile. Professor Kumado's take on it
is that society benefitsmore from physician's service than that of sweet maker
(confectioner). The only way you canunderstand this is statement of value action.
It is hard to reconcile with principle of court notcompelling a neighbor to alter
his/her lifestyle for you.

Matania v. National Provincial Bank

The duration of the interference is immaterial, that is whether temporary or
permanent. Generally speaking, way to which land is put in itself is not conclusive
as to reasonableness. It is what you do there.
Facts: Certain premises were demised to the defendant bank with a restriction
against alteration without the consent of the lessor. The bank demised the 2nd and
3rd floors of the premises to the plaintiff with the covenant for quiet enjoyment
and to perform and observe the covenants in the head lease. The 2nd defendant, the
Elevenist Syndicate, wished to take the first floor of the premises but extensive
alterations were necessary. The bank obtained the consents of the head lessor
subject to that of the sub-lessor. The plaintiffs consent was never obtained. The
Elevenist Syndicate instructed contractors to carry out the alterations, and no
proper precaution being taken, the plaintiff suffered damage by reason of the dust
and noise caused by the building operation. He sued for damages for breach of
covenant for quiet enjoyment, nuisance and trespass.
Held; i) As the consent to the alterations being carried out is subject to the
plaintiffs consent being obtained, and this was never obtained, the position was
that there was no consent to the alternatives effected.
ii.) Although the Elevenist Syndicate had employed contractors, they were liable in
damages for nuisance since the work to be done in the very nature involved a risk
of damage being done to the plaintiff.

C.F.C. Construction v. Accra City Council

Facts: The plaintiff brought an action against the defendant for damages and an
injunction torestrain them from dumping garbage near their property. The
defendant council had beendumping garbage and refuse in a quarry in the plaintiffs
residential area and this had seriouslyinterfered with their comfort. The defendants
contended that they were acting on statutorypowers and also that at the time of the
hearing the smell had ceased, hence a mere temporaryinterference with the
plaintiffs comfort should not be actionable.
Held:i.) That any interference with a person's enjoyment whether temporary or not
amounted toactionable nuisance provided the degree of interference was
sufficiently serious.
ii.) Whether a statute had authorized the doing of a particular act which would
inevitably causenuisance, all remedies are taken away provided that the defendant
had taken every reasonablemeans to prevent the nuisance occurring. The person
relying on the statutory powers mustestablish that such authority is expressed or
implied.
iii.) An injunction would not be granted in this case because looking at the duty
performed bythe Council, the interest of the public would be at stake if injunction
was granted.

Abochie v. Saad
Facts:Plaintiffs father leased to one Aschkar premises situated next door to the
plaintiffs dwelling house. The defendant, Saad, was a sub-tenant of the premises.
When plaintiffs father died, he possessed the reversionary interest. The plaintiff
complained to Aschkar that the defendant had installed on the premises an ice
making plant which caused noise, injuring her health. The defendant removed the
machinery but at a later date he installed it and took no notice of plaintiff s
protests.
Plaintiff sued claiming damages for nuisance and an injunction. Before the
substantive case was heard, the plaintiff filed a motion for an interim injunction
restraining the defendant from continuing the nuisance.
Held: There is a distinction between an action for nuisance in respect of an act
producing material injury to property and one of an act producing personal
discomfort. As to the act producing discomfort, a person must in the interest of the
public generally submit to the discomfort of the circumstances of the place and the
trade carried on around him. But no evidence has been adduced to show or prove
that the locality of the premises where thedefendant-respondent carried on his trade
and business is a locality where generally such trades or business are carried on.
The plaintiff is asserting her right to a free enjoyment of her property and to enjoy
good health. Such rights exist and an interim injunction would be granted.

Manchester Corp. v. Farmworth

Where a statutory defense is pleaded, the onus of proof is on the defendant to
establishthat they acted diligently to prevent the operation from being a
nuisance.The law is that if one is carrying out a statutory duty, one must do so in a
reasonablemanner so if one discharges that duty in an unreasonable manner, that
person can be suedfor nuisance.
Facts: The plaintiffs sued the defendants for damages and an injunction for causing
theemission of poisonous fumes from the chimneys of their electrical engineering
station. Thedefendant contended that they had been empowered by the Manchester
Corporation Act to carryout the act complained of.
Held: They were held liable because they had not shown that they had used all
reasonablediligence in preventing their generating station from creating a nuisance.
Commentary:Statutory authority gives complete protection from liability so long as
the act, which isauthorized by legislation and its necessary consequences, is done
with reasonable care.
Thompson Schwab v. Costaki
Sensible Material Injury to property which is enormous. We are talking about
damagesthat can be qualified in money terms - if your use of land results in value
of neighbor'shouse going down.
Facts: The plaintiffs occupied a good class residential street in London. Adjoined
to the streetwas a house belonging to the defendant who used it for commercial sex
work. The plaintiffbrought an action against the defendant.
Held: That it amounted to actionable nuisance. This was sufficient prima evidence
of nuisance,as having regard to the usages of civilized society and the character of
the neighborhood, thedefendants' activities constituted a sensible interference with
the comfortable and convenientenjoyment of the plaintiff s residence and an
interlocutory injunction would be granted torestrain it.

St. Hellens Smelting v. Tipping

Substantial Interference [Personal Discomfort/Inconvenience]
Key Principle:In assessing whether the interference amounts to an actionable
nuisance,the nature of the locality is taken into account. However, in cases where
the interferencecauses physical damage to property, this rule does not apply.
Facts: The plaintiff bought an estate consisting of about 1,300 acres near to the
defendants'copper smelting works. The vapor from the works proved injurious to
the plaintiffs trees andcrops and he claimed to be entitled to damages.
Held: He would succeed. The jury was correctly directed that an actionable injury
was oneproducing sensible discomfort and that every man, unless enjoying rights
by prescription oragreement, was bound to use his property in such a way as not to
injure that of his neighbor.The law was not concerned with trifling inconvenience
and everything had to be consideredfrom a reasonable point of view. In this case,
the jury was asked to consider whether the injurywas such as visibly diminished
the value of the property and the comfort and enjoyment of it.Time and locality
were factors to be taken into account.
Lord Westbury L.C:
He drew a distinction between nuisances producing sensible material injury to
property andnuisance causing personal discomfort. In assessing whether the latter
can constitute anactionable nuisance, it is necessary to take into account the nature
of the locality. "If a man lives in town, it is necessary that he should subject
himself to the immediateconsequences of these operations of trade which may be
carried on his immediate locality,which are actually necessary for trade and
commerce, and also for the enjoyment of property,and for the benefit of inhabitants
of the town and of the public at large."

Heath v. Brighton Corporation

Law does not require that where dealing with personal discomfort, we show that
there isinjury to our health. By the fact that we even lose one night's sleep for
instance, issufficient.
Key Principle: If the interference is due to the sensitivity of the plaintiff and is one
whichwould not disturb ordinary healthy people, there is no redress.
Facts: The incumbent and trustees of a church, the plaintiffs, sought an injunction
to restrainthe alleged nuisance caused by the defendant's electricity works which
were in the immediatevicinity of the church. It was not alleged that the low hum or
note of the machinery had let to adiminution of the congregation; the only person
who was personally annoyed was theincumbent, but he was not prevented from
preaching or conducting the accustomed services.
Held: The plaintiffs had not shown a sufficiently serious annoyance to entitle them
to theinjunction which they claimed.

Bolton v. Stone
Facts: The respondent, Miss Stone, claimed damages for injuries received when
she was truckby a cricket ball while standing on the highway in a road adjoining a
cricket field occupied bythe club of which the respondents were members. In the
House of Lords, the respondentconceded that, in the circumstances, nuisance could
not be established unless negligence wasproved.
Held: For an act to be negligent, there must be not only a reasonable possibility of
itshappening but also of injury being caused thereby. On the facts, the risk of
injury to a person onthe highway resulting from the hitting of a ball out of the
ground was not small but that thepossibility of such an injury would not be
anticipated by a reasonable man, and therefore, theappellants were not liable to the
respondent.
-The plaintiff was not entitled to damages in negligence or nuisance as the
probability of suchan injury would not be anticipated by a reasonable man.

Malone v. Laskey
Key Principle: The traditional view has been that only those who have a legal
interest inthe land affected can sue in private nuisance.
Facts: The defendant let a house to a tenant who also subletted it to the plaintiffs
husband. Inthe lavatory of the house was a water tank which became insecure
owing to vibration from thedefendant's premises. The plaintiff complained to the
tenant who in turn informed thedefendants. The defendant employed workmen to
put up a bracket in support of the tank. Thebracket fell upon the plaintiff, injuring
her, and she brought an action against the defendant.
Held:i.) That even though the engine sound amounted to a nuisance, the defendants
were not liablebecause the plaintiff had no interest in the premises nor right or
occupation in the house.
ii.) There was no contractual relationship between the plaintiff and the defendant.
Here thedefendant owed to her no duty of care.

British Road Services Ltd. v. Slater

Facts: At a slight bend in the road, there grew an oak tree of considerable age on
the grass verge or bank adjoining the defendant's land. During the hours of
darkness, a lorry drew into the side of the road to allow another lorry to pass and
the load of the first lorry, 16ft 4 ins from the ground, struck a substantial branch of
the tree and a packing case fell into the path of the other lorry and caused it to run
off the road and suffer damage. The plaintiffs owned both lorries and sought to
recover damages on the ground that the branch was a nuisance. Until this accident
occurred, neither the defendants nor the highway authority had cause to regard the
branch as a hazard to traffic.
Held: Although the branch constituted a nuisance because it prevented the
convenient use of the highway, the plaintiffs' actions should fail. While the source
of the nuisance, that is the branch, was plain for all to see, the defendants, having
inherited the nuisance, were not liable for the consequences of failing to remedy it
until they were aware that it was a nuisance or, with ordinary and reasonable care,
should have become so aware.

Bower v. Peate
Facts: The plaintiff and the defendant were owners and occupier^ of adjoining
houses, the plaintiff being entitled to the support of the defendant's soil for his
house. The defendant wished to pull down his house, excavate the foundation, and
build another on the same site. He employed a contractor to do the necessary work,
the contractor agreeing to undertake the risk of supporting the plaintiffs house so
far as was necessary to during the progress of the work, and to make good for any
damage which might be sustained, and satisfy any claims arising therefrom. In
consequence of the contractor's defective underpinning and want of another
support to the plaintiffs soil and walls in the course of the work, the plaintiffs
house was damaged. He sued for damages.
Held: The defendant did not order any specific work necessary to provide support
for the plaintiffs house but left the recourse to such work entirely to the discretion
of the contractor, whereas he was bound to take steps to prevent the mischief
arising and could not relieve himself of his liability for the wrongful consequences
of the work by employing the contractor, and therefore, plaintiff was entitled to
succeed.

Tarry v. Ashton
Facts: The defendant was in occupation of a house from the front of which a heavy
lampprojected over the pavement. As the lamp was becoming dangerous, the
defendant employed anindependent contractor, one Chappell, an experienced
gasfitter, to repair it. Nevertheless, as aresult of Chappell's negligent work, the
lamp fell down and injured the plaintiff.
Held: Nuisance is established. The lamp had not been always kept in a proper state
for it to beharmless to passers-by. Maintaining such a lamp in an improper state
was nuisance to thehighway. The plaintiff was entitled to damages as the defendant
was in breach of his duty tomake the lamp reasonably safe.
Lush J."The question is, what is the duty of a person in the position of the
defendant? Is it his duty tomaintain his premises in good repair, or only to employ
a competent person in the work ofmaintaining them? I think the mere statement of
this case suggests the answer. A person whokeeps a lamp of this kind puts the
public in peril. He cannot get rid of his duty to put the publicout of peril by
employing another person to take the necessary steps for doing so."

Ratio Decidendi
The duty of the occupier of a house abutting a highway is to repa'ir all known
defects of thehouse and its appurtenances, the non-repair of which may result in
danger to the passers by.
That duty is not discharged by the employment of a contractor to repair such
defects, and if damage results from the negligence of a contractor so employed, the
householder is liable. Nuisance will also lie against the defendant if he buys
property and he refuses to abate a nuisance thereon or therein.

DEFENCES
Consent:
If you can show that you carried an act as a statutory duty and you did it
reasonably, can defend yourself.
Kiddle v. City Business Properties Ltd.
Where an overflow of rainwater - from a blocked gutter at the bottom of a sloping
roof in the possession of the landlord, and above the tenant's premises - damaged
the stock in the tenant's premises, consent afforded a good defense.
Haley v. London Electricity Board (L.E.B.)
Facts: The appellant, a blind man, lived in south-east London and one morning on
his way to work tripped over a long handled hammer which the respondents had
leaned against a railing to protect pedestrians against an excavation which they (the
respondents) had made in the pavement before the usual protective fences had
arrived at the site. The appellant had approached the excavation in the proper way,
waving his white stick in front of him, but it passed over the lower end of the
hammer blade. It was found that the respondents had given adequate warning to
ordinary people with good sight.
Held: It was reasonably foreseeable - that a blind person may have passed along
this particular pavement and the respondents had failed to discharge their duty to
take reasonable care not to act in a way likely to endanger any person who may be
reasonably expected to walk along it. It followed that the appellant was entitled to
recover damages at common law for negligence. There is...no authority... which
would compel one to take the view that the obligations of those responsible for the
safety of foot pavements is restricted to those'persons who have normal sight...they
must have regard to all road users, which include the blind and other persons.

ABATEMENT
You can defend action in nuisance by proving that act done by vou was done to
abate anuisance.
Lemmon v. Webb
Facts: Without giving notice to the appellant and without trespassing on his land,
therespondent cut off some branches to the appellant's trees which were
overhanging his soil.
Held: The respondent was entitled to do this.
RYLANDS & FLETCHER

Rylands v. Fletcher is a strict liability principle.

Rylands v Fletcher
Key Principle: "...The person who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief if it escapes, must keep it in
at his peril, and, if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape.
Facts: Defendants owned mill run by water. To improve their water system, they
employed a firm of contractors to build a reservoir. They exercised great care in
selecting a contractor. Unfortunately, the contractor did not exercise due care in
building the reservoir. There was some used shafts. There was a failure to block
these disused shafts so when reservoir filled with water, it seeped through the
shafts and caused considerable damage to the mines of plaintiff.
Held: Trial judge posed question and it is answer he gave that has evolved into rule
in Rylands v. Fletcher. He noted that a person who brings something not naturally
on his land onto that land, does so at his own peril. This was a startling rule. It had
no precedent. Defendantsappealed and their appeal was dismissed but with some
qualification by the House of Lords. It was noted that,"A person who, in the course
of a non-natural use of his land, accumulates or is held to be responsible for the
accumulation on it of any thing likely to do harm if it escapes is liable for the
damage to or interference with the use of land of another which results from the
escape of the thing from his land."
 Blackburn J:It is agreed on all hands that he must take care to keep in that which
he has brought on the land and keeps there, in order that it may not escape and
damage his neighbor's, but the question arises whether the duty which the law casts
upon him, under such circumstances is an absolute duty to keep it in at his peril, or
is, as the majority of the Court of Exchequer have thought, merely a duty to take
all reasonable and prudent precautions, in order to keep it in, but no more. If the
first be the law, the person who has brought on his land and kept there something
dangerous, and failed to keep it in, is responsible for all the natural consequences
of its escape. If the second be the limit of his duty, he would not be answerable
except on proof of negligence, and consequently would not be answerable for
escape arising from any latent defect which ordinary prudence and skill could
detect.... We think that the 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 in at his peril, and if he does not do so, is prima facie
answerable for all the damages which is the natural consequence of the
escape...The general rule as above stated, seems on principle just. The person
whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose
mine is flooded by the water from his neighbor's reservoir, or whose cellar is
invaded by the filth of his neighbor's privy, or whose habitation is made unhealthy
by the fumes and noisome vapors of his neighbor's alkali works, is damnified
without any fault of his own, and it seems but reasonable and just that the
neighbor, who has brought something on his own property which was not naturally
there, harmless to others so long as it is confined to his own property but which he
knows to be mischievous if it gets on his neighbor's, should be obliged to make
good the damage which ensues if he does not succeed in confining it to his own
property. But for his act in bringing it there, no mischief could have accrued, and it
seems but just that he should at his peril keep it there so that no mischief may
accrue, or answer for the natural and anticipated consequences. And upon
authority, this we think is established to be law whether the things so brought be
beasts, water, or filth, or stenches."
Lord Cairn:"The defendants, treating them as the owners or occupiers of the close
on which the reservoir was constructed, might lawfully have used the close for any
purpose for which it might in the ordinary course of the enjoyment of land be used;
and if, in what I may term the natural user of that land, there has been any
accumulation of water, either on the surface or underground, and if, by the
operation of the laws of nature, that accumulation of water had passed off into the
close occupied by the plaintiff, the plaintiff could not have complained that that
result had not taken place. If he had desired to guard himself against it, it would
have lain upon him to do so, by leaving; or by interposing some barrier between
his close and the close of the defendants in order to have prevented that operation
of the laws of nature.
Commentary: At the time that these events in Rylands v. Fletcher occurred,
actions for nuisance and trespass to land known to law but could not bring an
action in trespass because flooding was not direct.
The flooding occurred because water went through the disused shafts and because
of failure to block the shafts so an action in trespass was not possible. They would
not bring an action in nuisance because this was a one-time event. It was not
continuous.
Cox v. Burbidge
William J: "I apprehend the general rule of law to be perfectly plain. If I am the
owner of an animal in which by law the right of property can exist, I am bound to
take care that it does not stray into the land of my neighbor, and I am liable for any
trespass it may commit, and for the ordinary consequences of that trespass.
Whether or not the escape of the animal is due to my negligence is altogether,
immaterial."

May v. Burdett
The Court after an elaborate examination said, "a person keeping a mischievous
animal, with knowledge of its propensities, is bound to keep it secure at his
peril...He who brings anything, no matter whether beasts or filth, or clean water, or
a heap of earth or dung, on his premises, must at his peril prevent it from getting on
his neighbor's or make good all the damage which is the natural consequence of its
doing so...That the circumstances were such as to show that the plaintiff had taken
that risk upon himself."

Rickards v. Lothian
Non-Natural User
Lord Cairns' requirement in Rylands v. Fletcher of "non-natural use" has
beenestablished as part of the rule. The courts have interpreted natural to mean
somethingwhich is ordinary and usual and non-natural use is equated with ordinary
use or activity.
Facts: By a malicious act, an unknown third party blocked a domestic water
system. The wateroverflowed and caused damage to the plaintiffs premises on the
floor below.
Held: There was no liability under Rylands v. Fletcher because the supply of water
via normaldomestic installations was a natural use of land.

Musgrove v. Pan delis

Held: Keeping a car in a garage with a full tank of petrol is a non-natural use.

Things Within The Rule

1.) Explosives
2.) Fire
3.) Electricity
4.) Gas
5.) Water

Fowler v. Lanning: Key Principle: In trespass to the person, the onus of proving
negligence lies upon the plaintiff.

Held: The statement of claim disclosed no cause of action, as the onus of proof of the
defendant's intention or negligence lay on the plaintiff. The plaintiff should either have
alleged that the shooting was intentional or that the defendant was negligent, stating the
facts alleged to constitute such negligence.

Holmes v. Mather: Even assuming the defendant to be as much responsible as his servant,
no action was maintainable for since the servant had done his best under the
circumstances, the act of alleged trespass in giving the horses the direction towards the
plaintiff was not a wrongful act.

Letang v. Cooper: Key Principle: Today the general principle is that direct intentional acts
of interference are dealt with by the tort of trespass. Where acts are unintentional and
indirect, the action lies in negligence.Actions for negligence, nuisance, or breach of duty
are barred after 3 years and other tort actions are barred after 6 years. The plaintiff relied
on trespass in an effort to prevent action from being time barred.

R v. Cotesworth: Sputum that came out of plaintiff’s mouth was considered to be an

instrument

Pursell v. Horn: It is only when water touches your skin that you can claim battery. If the
water simply touches the shirt, it is not battery. There was a battery as it includes all cases
where a party is struck by any missile thrown by another (Per Lord Denman CJ)

Cole v. Turner: Chief Justice Holt- The least touching of another in anger is battery.

Agbovi v. Setordzi: Where physical injury from battery can be proved, aggravated
damages may be awarded.

Fagan v. Metropolitan Police Commissioner: Authority for principle that physical contact
can be made through instrument
Nash v. Sheen: Lack of consent to physical contact. Held: It was evident that the plaintiff
never gave consent to the application of any dye or coloring matter to her hair.

Collins v. Wilcock: Lack of consent to physical contact. Key Principle: Battery is the actual
infliction of unlawful force on another person. Any physical contact, no matter how
trivial, is sufficient "force." Held: Caution of a woman suspected of loitering for the
purpose of soliciting men for prostitution was allowed but there was no implied power
upon police to stop and detain for cautioning so the taking of the defendant's arm
amounted to battery.

Innes v. Wylie: Complaint must relate to something defendant did and not some omission
or a failure to act on behalf of defendant

Coward v. Baddeley: Principle- Touching without hostile intention is not battery.

Privileged Contact: Touching without hostile intention is not battery. The mere purpose
of touching for the purpose of attracting his attention does not amount to battery or
assault.

Cobbold v. Grand: If the defendant honestly and on reasonable grounds believed that
the presence of the plaintiff endangered public order at the meeting, he could eject him
from the neighborhood.

Wilson v. Pringle: Key Principle- Unless it is evident from the act itself, the plaintiff must
show the conduct to be hostile. Held: Battery was an intentional and (hostile) touching of

or contact with, one person by another and an intention by the assailant to injure the
other was an essential element in tort. That whether a touching or contact was hostile
was a question of fact. Where in an action for battery the immediate act of touching
alleged does not itself demonstrate hostility, the plaintiff should plead the facts that are
said to do so.

Guarro v. U.S: Unless there is consent, it would seem that a sexual touching is sufficiently
offensive act.

Miller v. Attorney General: The maintenance of public law and order is important but
such order should not be achieved at the cost of unnecessary interference with the
security, dignity and inviolability of the citizen.
ECONOMIC TORTS
Case: Principle

PASSING OFF
Warnick v. Townsend: Principle has been stated by Lord Langdale as early as 1842 that,
"A man is not to sell his own goods under the pretense that they are the goods of
another man."

Bollinger v. Costa Braca Wine: Held- The injunction would be granted, because a
considerable number of people were likely to be misled by the description Spanish
champagne and because the description was an attempt to attract the goodwill attached
with the reputation of champagne.

Interference With Contractual Relations

Lumley v. Gye: Principle- Each of the parties to a contract has a "right to the
performance" of it: and it is wrong for another to procure one of the parties to break it or
not to perform it.

Held- The plaintiff was entitled to damages from the defendant who had maliciously
enticed and procured Johanna Wagner to refuse to perform at that theatre and thereby
to break her contract with the plaintiff.

Defences

Brimelow v. Casson: Facts- Plaintiff paid his chorus girls such a low wage that in
order to make a living they had to resort to prostitution... Held- The defendants were
justified in taking this course.

Merku Island Shipping co v Laughton 1983 AC

TORT OF CONSPIRACY
Rookes v. Barnard: Plaintiffs belonged to Union. Did not like services being
provided so they left the Union. Union asked company to dismiss plaintiffs or they would
go on strike (which would cause breach of contract). Plaintiff sued and sued for tort of
intimidation and established this principle.

Crofter Handwowen v. Veitch: Held- As the real purpose of the embargo was to benefit
members of the Union, the fact that it had resulted in damage to the crofters who had
used mainland yarn did not make it an unlawful conspiracy which was actionable at law.

TORT OF INTIMIDATION
Tarlton v. M'Gawley: Held- Plaintiffs were entitled to damages from defendant, who with
the intention of preventing the 'natives' from trading with the plaintiffs, fired a cannon at
the canoe from his vessel.

INJURIOUS FALSEHOOD
Joyce v. Motor Surveys Ltd.: The defendant's conduct was held to constitute injurious
falsehood, falsehood calculated to injure his business.

White v. Mellin: One has to draw distinction between injurious falsehood and mere
puff. Test is whether a reasonable person will take disparagement of your claim seriously.
(White v. Mellin) Held- He could not succeed as there was no evidence that the
statement complained of either had injured or was calculated to injure him. An action for
injurious falsehood failed on the ground (inter alia) that this mere puff was not
disparagement.

VICARIOUS LIABILITY
Vicarious Liability: To be liable for the actions of a third party.

Relevance: Employers are usually held liable for the misdeeds of their employees
provided certain conditions are fulfilled.

Conditions: There are 3 requirements for vicarious liability to arise, namely,

a.) Tort committed

b.) by an employee

c.) in the course of his employment

Justifications For Vicarious Liability:

1.) Serves a loss distribution function of law of torts. Employer is better able to distribute
loss to his customers, or to cover the cost of this kind of liability through insurance.

2.) Encourages employers to ensure better control over employees and this helps in
prevention of accidents.

3.) Encourages employers to be careful in the selection of their employees. Employer will
not be able to escape liability by showing that exercised greatest care in choosing
employees.

4.) Employer takes benefits of work of employee so he should also shoulder the risks
5.) From victim's point of view, his interest is that when he gets judgment, should be
against someone who can pay and so imposed against employer who can pay and not
employee who may be a man of straw.

6.) It is said that often the duty that is breached by the employee is often a duty that is
owed by the employer and it is only fair that the one who owes the duty should make
good the damages when it arrives.

Master/Servant Relationship: The relationship of being employer and employee, that is,
Employer = master, Employee = servant.

When Exists: It exists when there is a "contract of service" as opposed to where

there's a contract for services.

Contract of Service: When someone is employed as an employee.

Contract for Services: When someone is self employed/independent contractor.

Employment Status/Employment: Certain tests are applied to determine whether or

not one's an employee. The tests applied are:

Tests

a.) Control Test

b.) Integration Test

c.) Entrepreneurial Test

Control Test: A person is an employee if the "employer can not only order or require
what is done, but how it shall be done."

Integration Test:

A person is an employee if "he is employed as part of the business and his work is done
as an integral part of the business," whereas under a contract for services, although done
in business, is not integrated into it but is only accessory.

Entrepreneurial Test

We determine if what we have is contract for service or contract of service by looking at

3 elements;

1.) Business in question, whose is it?

2.) Person said to be worker, is he carrying out this business for himself or for superior?

3.) Who takes loss if financial risk and who pockets if profit?

Tort Committed: Required Tort: The tort committed may be any tort, including,

a.) Negligence

b.) Fraud

c.) Trespass to Goods

Course of Employment: Meaning during performance of employment duties -In its

simplest sense, it refers to things done while on the job, that is, while carrying out actual
duties.

Whether Servant Acting in the Course of His Employment: In determining whether

servant acting in the course of his employment, 2 main tests,

1.) Whether employee doing an act of the kind authorized by master, or

2.) Was he using wrongful mode of doing it?

-If doing what authorized to do, master is answerable. If doing what asked to do but
wrong method, master would be liable.

Employer's Liability to Third Parties (Vicarious Liability)

Century Insurance v. Northern Ireland Road Transport: Key Principle- When considering
the scope of employment it is enough to show that the employee was generally doing his
job at the time, and doing a job negligently does not take an employee outside the course
of employment. Held: The defendants were liable. At the time of the act. even though
the employee was plainly negligent, he was delivering petrol. This was the very purpose
for which he was employed.

Beard v. London General Omnibus: Held- The plaintiff had not discharged himself from
the burden cast upon him of showing that the injury was due to the negligence of a
servant of the defendant acting within the scope of his employment.

Akyigina v. Adjei: Held- Since the vehicle was owned by the appellants who employed
the driver who drove the vehicle at the material time to cart sand and stone, a
presumption was raised that the accident occurred at a time when the driver was driving
in the course of his master's business and the onus shifted on to the appellants to rebut
this presumption but he failed to do so.

Rickets v. Thos Tilling: In order to make the owner liable, there must be negligence on
the part of the person for whose acts the owner is responsible - his servant either
regularly or for the occasion only.

Whatman v. Pearson: Principle- Where an act which is authorized by an employer is

performed by the employees in a wrongful and unauthorized manner, the employer
remains liable.

Lister v. Hesley Hall: Key Principle- The proper approach to the nature of
employment is not to ask the simplistic question of whether the acts were modes of
doing authorized acts but to adopt a broad assessment and to consider whether the torts
were so closely connected with the employment that it would be fair and just to hold the
employers liable. Held: The defendants had entrusted the care of the children to the
warden and the abuse had been inextricably interwoven with the carrying out of his
duties. His torts had been so closely connected with his employment that it would be fair
and just to hold the defendant's vicariously liable.

Rayner v. Mitchell: Principle- Law is that whether a detour keeps or takes you out
depends on whether it is a major or minor detour. Held- That the brewer wasn't liable
because the van man didn't set out on his employer's business but on his own frolic, that
is, the initial purpose of his act.

Zagloul v. Pearson Held: It was held that the master was liable because the driver had the
authority of the master to be using the vehicle.
Attorney General v. Dadey: Held- An employer who permits his servant to use his vehicle
will not be vicariously liable for the negligence of the servant unless the vehicle was being
used for the employer's business.

Morris v. Martin

Held: They were vicariously liable because the fur was stolen by Morissey, the servant
through whom the defendants, as bailees for reward towards the plaintiff had chosen to
discharge their duty to take reasonable care of the plaintiffs fur.

Canadian Pacific Railway Co. v. Lockhart: Held- That the means of driving was incidental
to the execution of that duty which he was employed to do, and that the prohibition of
the use of an uninsured motor car merely limited the way in which, or by means of
which, he was to execute the work and that breach of the prohibition did not exclude the
liability of the company to the respondent.

Limpus v. London General Omnibus: Key Principle- An act may be within the course of
employment even though it has been expressly forbidden by the employer. Held- Despite
the prohibition, the employers were liable since this was simply an improper method
adopted by the employee in performing his duties.

Rand v. Craig

Held: The defendant was held not liable for this trespass because they were employed,
not to parry rubbish generally but only to carry it from X to Y. The act was therefore of a
kind that the defendant was impliedly forbidden to do.

Poland v. Parr

The question is whether the act is one of the class of acts which the servant is authorized
to do in an emergency. In the present case, the man Hall was doing an act of this class
namely, protecting his master's property, which was or which he reasonably and honestly
thought was being pillaged. His mode of doing it was not, such as to take it out of the
class. He was therefore doing an authorized act for which the respondents were
responsible...

Packer v. Sekondi/Takoradi Municipal Council: The driver (the second defendant) was
acting within the scope of his employment while driving the motor bus, and that the
council (the first defendants) was liable for his negligence.

Fynn v. Badu: Held: It could not be said that K was in any sense acting for the appellants.
He was acting entirely for his own benefit and was driving the vehicle in his right as a
purchaser. In the case of joint enterprise, joint possession or joint right to control is the
basis of liability.

Yaw Aboaku v. Tetteh: On the principles of vicarious liability, the second defendant could
be held liable for the negligence of the first defendant whether or not he was in his
employment and even if the ownership of master and servant doesn't exist strictly
speaking.

Buobuh v. Minister of Interior and Another: The liability of the Republic, as represented
by the Attorney-General, was vicarious.
Question is, who is an employee? -There are about 3 tests for determining who is an
employee.

1.) Integration (Organization Test)

2.) Entrepreneurial Test

3.) Control Test

Stevenson v. McDonald: The "integration test" was proposed by Lord Denning: an

employee is someone whose work is an integral part of the business; an independent
contractor is someone who would work for the business, but as an accessory rather than
an integral part of it.

-The second test is called the Entrepreneurial Test. There, we determine if what we have
is contract for service or contract of service by looking at 3 elements;

1.) Business in question, whose is it?

2.) Person said to be worker, is he carrying out this business for himself or for superior?

3.) Who takes loss if financial risk and who pockets if profit?

Ready Mixed Concrete v. Minister of Pensions: Key Principle- In determining the nature of
the employment relationship there are a number of relevant factors to be considered.
The allocation of financial risk is one of these factors and this particular question should
be addressed by asking: Is the person in business on his or her own behalf? The driver
was working under a contract for services. He owned the lorry, bore the financial risk and
was, in fact, running his own business.
Control Test

Mersey Docks v. Coggins: Key Principle- Where an employee is lent out to another
employer on a temporary basis, the presumption is that the general (or original)
employer remains vicariously liable. Held: Several factors have to be considered but the
decisive question to be asked was who bore the ultimate control over the manner in
which the work was performed. On the facts of the case, the Board remained liable.

Things to Note:

Format For Answering Tort Problem Question

1.) Identify the Tort Area

2.) Put down your Elements/Principles/Cases (Assembling your Elements/Ammunition)

3.) State the Facts of the Case

4.) State the Issues

5.) Analysis (All material/information used in your analysis should be in Stage 2. Do not
introduce any new material such as cases, which have not been put down in Stage 2).

-Note that in a tort problem question that asks whether there is a 'cause of action,' in
assembling your elements, you have to state what 'cause of action' means.' Cause of
action was defined in Letang v. Cooper as a set of facts, the existence of which, if proved,
entitles the plaintiff to remedies, in a court of law (Paraphrased).