lOMoAR cPSD|

lOMoAR
19763056
cPSD| 19763056

LLB 2, FIRST SEMESTER CLASS NOTES

NATURE AND HISTORY OF TORTS

COURSE CONTENT; as per the reading list

UNIT 1: INTRODUCTION TO THE LAW OF TORT

The Historical Origin, Development and Functionality of the Law of Torts
1.0 The nature of Risk, compensation and Remedies in Commercial Societies
1.1 The nature of tortious liability in slave societies
1.2 The nature and incidence of tortious liability in the Feudal period
1.3 The nature and incidence of tortious liability in the era of mercantilism
1.4 The law of tort under Industrial Capitalism
1.5 Tortious liability in the era of Financial Capital
1.6 Tort in Uganda
1.7 Meaning and Functions of the Law of Tort
1.8 Definition of Tortious Liability
1.9 Law of Tort Distinguished from Criminal Law and Contract Law

1. Faulty and Non-Faulty Liability; Joint and Several Tortfeasors

UNIT 2: TRESPASS TO THE PERSON

2.1 Assault and Battery

2.2 Infliction of mental suffering
2.3 False Imprisonment
2.4 Defences and Remedies to Assault, Battery and False Imprisonment
2.5 Malicious Prosecution

UNIT 3: TRESPASS TO LAND

3.1 Definition of Trespass and Land
Downloaded by Afunaduula Isaac ([email protected])
 lOMoAR cPSD| 19763056

3.2 Actions Amounting to a Trespass: Airspace; Highway; Trespass ab initio

3.3 Defences: Consent; Lawful Authority; Necessity
3.4 Remedies: Damages; Injunctions; Re-entry; Action for the Recovery of Land

UNIT 4: TORTS RELATING TO GOODS

4.1 Liability for Defective Products

4.2 Interference with Goods: Trespass to Goods; Conversion; Defences to Trespass
and Conversion; Remedies

UNIT 5: DEFAMATION

5.1 Definition of Defamation

5.2 Distinction between Libel and Slander
5.3 Defences: Justification; Fair Comment; Absolute Privilege; Qualified Privilege;
Innocent Publication; Consent; Offer of Amends
5.4 Remedies: Injunction; Damages

UNIT 6: VICARIOUS LIABILITY

6.1 Basis and Reasons for Vicarious Liability

6.2 Master and Servant; Liability for Agents; Employer and Independent Contractor /
Employees

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

6.3 The Control Test; The Integral Part of the Business Test; The Course of
Employment.

UNIT 7: REMEDIES AND DEFENCES

7.1 Remedies: Damages (nominal damages, compensatory damages, contemptuous

damages, aggravated damages, punitive or exemplary damages); Injunction;
Other remedies.
7.2 Defences: voluntary assumption of risk (volenti non fit injuria); contributory
Negligence; illegality (ex turpi causa non oritur action); inevitable Accident; act of
God; necessity; mistake; exclusion clauses and consent.

Week 1: THE HISTORY OF TORTS.

In society people organize themselves in different ways. They have institutions that assist
in the running of the society.
GENTILE SOCIETY
This society was organized on the basis of clans and produced on a collective basis. This
was in response to the fact that they had limited skills and instruments of production so
they had to work together to sustain themselves. They lived in a natural economy as
opposed to a market economy. Today human beings have developed to a level when they
can produce their own means of production and can manipulate nature to their advantage.
The stages of development were savagery where they had no skills at all and just
appropriated nature to survive. The middle stage of savagery is marked by the discovery
of fire, then the club and spear. In the upper stage of savagery, they made bows and
arrows out of polished stone and hunting became established. In the lower stage of
barbarism there was pottery, weaving and the domestication of animals/agriculture. In the
middle stage there was introduction of bronze tools and weapons. It was then that
division of labor began. In the upper stage of barbarism there was iron smelting and this
led to large-scale agriculture. It also increased the effectiveness in war. The final stage
was civilization.
At each of these stages productivity of labor developed and there was development of
skills. Because of the collectiveness of the production political organization also became
collectivist. It was a classless society based on kinship ties. In many societies the clans
were totemic. They were governed by taboos as a means of social regulation. They were
cohesive and conflict was minimal. They were democratic and had no laws because they

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

had no government to institute the laws. Many of the civil wrongs that today make up the
corpus of tort law were nonexistent.
SLAVE SOCIETY;
These were differentiated in classes and were organized in states. When people became
able to produce in surplus it became possible to sustain a class of persons who were not
producing anything. The barbery stage then fades in to civilization. They had leisure and
time to think which led to discoveries like writing. It was the persons who learnt to write
who became philosophers. As a result of the fact that they were not engaged in
production their philosophies were idealist. They were aimed at protecting their status of
life. They regarded mind and spirit as primary and matter and life as secondary. To them
thinking was primary and labor was secondary. This resulted in classes as the
philosophers started appropriating the wealth of those who produced under slavery.
Those who owned property became the minority with no way of directly asserting their
will on the majority. The only way they could do this was through the state as an
instrument of coercion. It is important to note that not all societies were slave societies, in
places like Africa there was a mixture. The mode of production was slave labor which
was owned by the minority in society. They had private means of production like land
owned by the minority free men on which the slaves worked. The state had a number of
instruments like the prisons to impose the will of the minority on the majority. Law
developed as an aspect of the state to sanctify the unfair relations. It bound the slaves to
work for the masters. The state was not sufficient so they developed ideology to back it
up. This was in the sense of false consciousness. It was against this background that the
philosophies thrived. This ideology later achieved social prejudice as a way of
maintaining the supremacy of the minority. Roman law had already begun to develop
delicit that was the basis of tort. It began to reflect the interests of society, it promoted
inequality in society. 90% of society had no rights and no remedies for injuries to person
and property. Whichever law developed was for the benefit addressed the 10% who had
property and rights. These could get remedies if they were injured or their property rights
were violated. The law that was produced was a class law designed for a class of persons.
The slaves could only benefit from incidental protection. Today the law plays an
ideological role. Unlike during the period of slave society the law is not open about the
inequality it perpetuates. The issues of human rights and principles of equality before the
law it perpetuates the false notion that people are actually equal before the law and
generally in society. Eventually slave societies collapsed because the empires had
become unsustainable. The slave population became too small to sustain the majority
who were not participating in production. As the slave were exploited trade developed in

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

the Roman Empire. The slaves had therefore to sustain all the trading partners. The
Roman got slaves from conquest but as trade developed war and conquest ceased to be
viable sources of slave labor. This inevitably led to a decline in the slave population. The
rate of reproduction among the slaves was also very low because of the high proportion
of males. Later slaves could be freed which further depleted the population of slave labor.
This made the large-scale agricultural estates unsustainable. The Romans were overrun
by the Barbarians. It was out of the ashes of the slave system that the feudal mode of
production evolved in Europe. The large-scale agricultural units collapsed in to smaller
units. The slaves scattered and sought patrons and lived in what came to be called
colonii. They lived together and shared common facilities. It was out of these societies
that the feudal system developed.
FEUDAL SOCIETIES. 800AD to 1450AD.
When the Roman Empire collapsed all urban life collapsed and people reverted back to
rural conditions. This was when the common law system began to emerge forming the
foundation of today’s legal system. The economic base was feudal land ownership
(serfdom). The serfs were the direct producers and were tied to the land. Production was
agricultural and the water wheel, harness, and the plough were the main instruments of
production. It was possible to use animals as it was mainly small scale agriculture. There
was scattered handcraft industry. It was a natural economy and they produced use values
for consumption. The main economic unit was the manor which developed from the
colonii. There were landlords who owned large estates of land occupied by serfs who
produced the means of production. The serf produced for his own sustenance and also for
the landlord. They engaged in surplus labor. There was also common land for grazing.
Exploitation here was based on land ownership and the landlords extracted the surplus
from the serfs in the form of rent for the use of the land. This rent was payable in various
forms including labor or produce. Guilds also later developed and were under guild
master who had apprentices and journeymen working for them. Guilds engaged in
pottery, weaving and blacksmithing. In the countryside they had the cottage industry
doing the same. The feudal state was part of the economic structure. Here there was also
the hegemony of the church. The church was the largest land owner and had a lot of
political power. The feudal state was highly decentralized with the feudal lords wielding
a lot of power. The monarchy was the first among equals and though the serfs were not
slaves in the sense of being owned by the landlords they were tied to the land by law.
DEVELOPMENTS OF THE LAW IN THIS PERIOD.
Feudal exploitation depended on land ownership. The law therefore was preoccupied
with protecting interests in land. This was opposed by the Magna Carta of 1215 which

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

was in a sense an early version of a bill of rights. It tried to protect the rights of the serfs.
The developed writs which were in a sense the causes of action. A writ is a way of
starting a legal action and covered various forms of conduct which was considered to be
actionable. If no writ covered a particular situation, then the person had no remedy in
law. The law of torts as it exists did not exist until about 1280. Court action could be
begun in two ways: by the individual (appeal) and by the state (indictment). Note the
strong language of criminal summons as opposed to the “humble prayer” of a plaintiff in
civil actions especially petitions. All cases were regarded as criminal and there was no
demarcation as we have it today. Private actions were risky because they could be tried
by battle and if one lost they could lose their property or even be sent to jail so the
indictment was very popular. Towards the 13th century the writ of trespass was
introduced and it was the foundation of all torts and it was both civil and criminal. It was
designed to address serious breaches of the peace. Trespass was both civil and criminal
because if successful it ended in the compensation of the plaintiff and punishment for the
defendant. As society developed there arose situations where trespass was not a direct
consequence of the actions of the defendant and could not be remedied under the
traditional writ of trespass. The courts created a writ analogous to trespass to remedy
consequential trespass i.e. trespass on the case. Trespass on the case is what developed in
to negligence to remedy consequential harm. In its early stages it was limited to persons
carrying on common callings e.g. innkeepers, blacksmiths, journeymen and common
carriers.
-The law further developed to apply to a person not because they pursued a common
calling but because they undertook to perform something. This was called assumpsit and
laid the foundation for the law of contract.
-Case expanded to cover other feudal interests like the writ of debt, the writ of detinue
and account. Detinue was the wrongful detention of a chattel and was usually against a
Bailee. The writ of debt was used to recover money, the price of goods, money from a
surety, money promised under a sealed document and statutory penalties. Covenant dealt
with undertakings under seal.
-The writ of account dealt with accountability. It was usually brought by feudal lords
against baillees who collected for them rent from their estates.
-What is today called assault, battery and theft were covered by trespass because there
was infliction of physical injury. When there was trespass intention was immaterial.
-False imprisonment was handled as a battery since there was application of force
directly. This was aimed at protecting the rights of mobility granted by the Magna Carta.

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

-Malicious prosecution was not distinguished from false imprisonment but when it was it
was called a writ of conspiracy.
-The writ of nuisance was designed to protect immovable property from interference
especially land since it was the most important form of property.
-The writ of defamation began as a criminal case. It was not available for the peasants in
the beginning since they did not have a reputation to protect. It was aimed at protecting
the state from ridicule but even private individuals could benefit from its protection. The
manorial courts had jurisdiction to hear these cases until they were taken over by the
king’s courts. The court of Star Chamber had exclusive jurisdiction to hear defamation
cases. The king’s court punished defamation and the ecclesiastical courts punished
slander.
The general characteristics of tort liability;
· In its initial development, it was criminal but later took on a quasi-criminal nature. ·
When the common law begun to develop civil liability it was based on an act causing
harm.
-it had to fit in a given writ to be remedied. Writs were designed to address particular
interests and issues of serfs were not considered.
· It did not make a distinction between careless, intentional and accidental wrongs. It was
in the nature of strict liability.
THE PERIOD OF MERCANTILISM 1450 -1700.
This was a period of great change. In this period feudalism was fading and capitalism
was taking center stage. It was marked by the rise of towns and merchant capital. Trade
developed out of the expansion of guilds. The merchant class emerged and became
differentiated from the guilds. Trade towns developed based on fairs. Trade fairs were
temporary markets. It was still a natural economy and trade could not have permanence.
As the fairs became permanent trade towns developed. The merchants then begun to
penetrate the feudal economy. · Serfs and peasants engaged in the cottage industry and
the merchants supplied them with the materials for production and bought the products
from them. · The merchants begun selling luxuries to the feudal lords and money
penetrated the feudal economy. There were natural limits to feudal exploitation but when
money came in the nobility desired the luxuries supplied by the merchants and the level
of exploitation escalated. This led to the peasant riots which rocked Europe during this
period. The merchant class was growing much richer and superseded the nobility. The
feudal arrangement was not compatible with a money economy so the lords begun to ask
for money rent which made the serfs free to work elsewhere to earn the money to pay the
lords. They then lost their ties with the land and became free peasants. This infiltration of

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

money into the feudal economy led to the development of an exchange economy which
enriched the merchants at the expense of the nobility. The people in the country side
ceased to be self-sufficient and the feudal economy died.
THE DEVELOPMENT OF MANUFACTORIES.
In the beginning merchants supplied raw materials to the cottage industry and bought
products from them. They later consolidated the manufactories in to manufactories. They
were different from the modern factories in the sense that there was no division of labor,
the direct producers owned the means of production and there was no wage labor.
Manufactories led to commodity production that facilitated the exchange economy.
ENCLOSURE MOVEMENT.
This completed the process in that there was an unprecedented expansion in the
manufacture and trade in wool, which was highly priced. Capitalist farmers engaged in
the production of wool in the countryside. Because of the high prices of wool, the
capitalist farmers enclosed the countryside to make sheep rands. The free peasants were
uprooted from the countryside and became labor. It led to the emergence of a labor
market in the urban areas. This led to a larger market, which facilitated an international
economy. The enclosure movement went hand in hand with the disruption of the feudal
system and affected the church as the largest landowner. The transformation in feudalism
also took the form of a reformation in the church.
INTERNATIONAL TRADE.
Trade in the beginning was international and occasional in nature. When international
trade begun in Europe it took the form of plunder and brigandry. The exploration of a
route to the east begun in search for silver and gold as the mines in Europe were
exhausted. Silver and gold were used as money and thus were very important. This led to
the establishment of the triangular trade. Because of the expansion in trade the merchants
became very powerful. The merchants begun to combine with the monarchy in the state.
The monarchy sold charters tot trade to the merchants and the merchants extended credit
to the lords that led to the accumulation of the public debts. They established a central
bank to take care of the public debt. This weakened the feudal nobility and the merchants
rose to power. The feudal kings relied on the merchants and abandoned the nobility. This
led to the emergence of despots because the nobility could not control the kings and yet
the merchants also did not have the power or the goodwill to restrain the kings. This
period ends when industrial capital is coming in leading to revolutions.
DEVELOPMENTS IN THE LAW.
Economic activity became more and more socialized. An exchange economy developed
over the natural economy. The common law begins to absorb principles of law developed

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

by the merchants ( lex macartoria). The merchants moved from community to

community, had their own laws and their own courts called fair courts or dust courts to
solve their conflicts in trade. The common law courts did not handle issues related to
commercial transactions which were alien to the natural economy. The merchant law
principles developed separately and applied throughout Europe. As trade developed the
merchant courts begun to merge with the common law courts. The common law courts
then became able to adjudicate in commercial transactions. This strengthened the bond
between the nobility and the merchants. The law of contract was firmly established. The
law of tort also developed to cover new areas for example transport and injuries in
manufactories. This period witnessed important political developments. The overthrow of
feudalism was manifested in the reformation by Henry VIII. The church as a powerful
ally of the state was overthrown. There were also bourgeois revolutions to establish
constitutional arrangements. The law of tort developed to cover malicious imprisonment,
defamation etc. owing to the fact that this was the first exchange economy it produced
principles suited to the exchange economy. Trover was developed to cover situations
were the defendant was willing to return a chattel but had either willingly or wrongfully
damaged it or parted with possession of it. The essence of the action was not wrongful
detention but failure to return it. This is what is called conversion to day.
MIS-FEASANCE.
This was intended to cover breach of contract. The common law developed a mature
concept of contract. They were not conversant with commercial transactions and were
not sure which type of contract was enforceable and which ones were not so they
developed the concept of consideration in order to deal with the question of
enforceability. Detinue at first was limited to bailment but was later extended to cover
situations were the defendant refused to return a chattel when it was demanded by the
plaintiff. The mobility of chattels had led to a transformation in the law. Debt was also
extended to cover a wider variety of debts. Liability for dangerous things was also
established. An action on the case could be brought against someone who engaged I
dangerous projects on his land irrespective of intention to cause damage. Trespass at that
time did not have regard to questions of intent or accident. Because of the rising
populations injuries were more intentional than not soothe concept of strict liability
developed to address such situations. It was adjusted to cover negligence.
Defamation continues as a crime and includes sedition. It was crucial for the survival of
the state because of the upheavals that rocked Europe at the time. The law of defamation
and sedition were perfected at this time. In this period printing had begun and there was a
need to control publication. Defamation had begun in the 16th century as a common law

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

action. A person could bring an action for defamation. Ecclesiastical courts handled the
less serious forms of defamation so there was competition with the king’s courts.
However, the church did not award damages as the common law courts did. As the tort
developed the essence of the case became damage and not the words.
The feudal nobility was prone to gambling and dueling. They did not understand the
action so they turned it into a way of making money. The courts were forced to formulate
the action in more precise terms. i.e. ·
-Truth was a defense. One who spoke the truth was not liable.
- There must be publication to a third party and this was intended to exclude mere insults.
· An action for defamation does not survive a plaintiff for the benefit of his estate.
-There was a distinction between libel and slander.
MALICIOUS PROSECUTION.
In 1589 a writ of conspiracy had been established. Conspiracy became the action for
malicious prosecution. The essence of the action became damages and not the conspiracy.
It covered issuing of malicious warrants against people.
Lovett V Faulkner. In this case the court held that the action could not lie against one who
reported a case of treason. In a later case it was reversed and the court held that when one
brought a case of treason against another maliciously they were liable in malicious
prosecution.
Walter V Smith in the 1858 case of Knight V King the court held that the essence of the
action was not the conspiracy and even one person could be sued.
In Saville V Robert the court held that a) the plaintiff must have suffered damage to his
name or property in an action for malicious prosecution. b) There had to be express
malice and iniquity. c) The ground of the action was not conspiracy and it could be
brought against a single person. d) No action could lie in a malicious civil action because
the court would award damages to the successful party. e) The proceedings relied on
must have terminated in favor of the plaintiff.
Week 2: INDUSTRIAL CAPITALISM 1700 – 1870.
This period was distinct from those before it because it was characterized by commodity
production based on wage labor on the one hand and private ownership of means of
production on the other. Production is by machinery and factory system on the basis of
competition. The social basis for the capitalistic production had been laid in the period of
mercantilism through primitive accumulation. This was done through unequal exchange,
brigandage, long distance trade etc. The technical developments were furnished by the
industrial revolution which was marked by extensive invention especially in the textile
industry. In this period manufactories were superseded. The aim of production was profit

10

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

and accumulation of surplus value. The initial form of capital was user capital. The
capitalists bought commodities and resold them at a profit. There was exploitation of
labor which led to struggles between labor and the capitalist over the level of
remuneration, working conditions etc. as a result the capitalists accumulated a lot of
wealth and controlled the state. This led to bourgeoisie revolutions in a bid to establish
democracy and republican rule. There emerged the ideologies of freedom, equality and
liberty. The monarchy either accepted the dictates of the bourgeoisie like in England or
resisted and got thrown aside like in France.
DEVELOPMENTS IN THE LAW.
There was a greater magnitude of risks of injury especially in the factories and out of the
transport system. The working class lived in horrid conditions because they were at the
mercy of the profit oriented capitalists. There was also mass production as a result of the
industrial revolution, which heightened the risks to consumers. The capitalists were in
frantic competition and needed to survive. They were not ready to reduce their profits to
pay workers or pay them compensation for any injuries. The law was preoccupied with
the protection of capitalists at the expense of other classes of society. There was
introduction of democracy and the state is somewhat liberalized. The law of defamation
was relaxed. Trespass became a personal action. Many of the injuries that occur are not
remedied because the law is preoccupied with preserving the profitability of the
capitalists.
DEVELOPMENTS IN THE LAW OF DEFAMATION.
This time there were developments to try and put aside the law especially in regard to
public affairs. The law creates a lot of defenses to the action of defamation. There was a
representative government and public affairs had to be discussed even the conduct of
public officials. They had public rallies with a lot of freedom of speech. In 1840 there
was a Parliamentary Papers Act, which provided for freedom from defamation liability
for publishers of parliamentary papers. In 1843 Lord Campbell’s Act allowed an apology
to be pleaded in mitigation of damages in an action for defamation. In 1868 there was
the case of Watson V Walter, which accepted an apology to be pleaded in mitigation of
damages for defamation. It extended the defense of qualified privilege to publishers of
independent paper reports of parliamentary proceedings. In 1881 the Newspaper Libel
Act had a lot to do with criminal defamation. It provided that where there was an
accurate, fair and un malicious report of proceedings at a lawfully convened public
meeting, such a report would be privileged even if it contained defamatory matter as
long as the editor allowed the person concerned a chance to explain in the next issue of
the paper.

11

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

SUMMARY OF DEVELOPMENTS DURING THIS PERIOD.

The law was concerned with the protection of private enterprise. In order to achieve this,
three defenses were developed; Common employment, Contributory negligence and
Voluntary assumption of risk. These were used to reduce the liability for injuries.
Vicarious liability also became established during this period, thus widening liability. A
person was held liable for the torts of another on the basis of the legal relationship
between them (Principal/ agent, Employer/ Employee relationship). The Principal/
Employer/ Master was made liable for the torts of his agent/ employee. This was because
torts in industries were more likely to be committed by employees than employers.
Therefore, employers were made liable in damages for torts committed by their servants
in the course of employment.
Common employment; A workman could not recover damages against his employer
(vicarious liability) for injuries caused to him by another workman in the same
employment. In this way the benefits of vicarious liability were denied to employees in
the industries. This development was due to the fact that the majority of accidents were
caused by fellow employees.
Contributory negligence; If a person was injured as a result of the negligence of another
person but the victim in some way contributed to his own injuries the courts could not
allow him to recover damages to the full extent of his injuries. This was therefore an
absolute defense at that point in time.
Voluntary assumption of risk; If one consented to risks he could not recover damages in
respect of the resultant injuries. This was used by employers to prevent workers in
factories from recovering damages in respect of their injuries. The employers claimed
that the employees entered employment knowing the risks they faced.
STRICT LIABILITY.
Rylands V Fletcher.
The law developed strict liability in relation to the use of land. It was designed to redress
disputes amongst property owners. If one committed a tort, he would be liable even if he
had put in place precautions against the tort or had good intentions in committing the
same. Capitalism was unplanned and the competing use of land was bound to result in
injuries to some people, which made strict liability necessary. It was limited to the
protection of property owners through recovery of damages to property and was not
extended to personal injuries.
Qns: 1. Discuss the developments in the law of torts during industrial capitalism and give
reasons for those developments.

12

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

2. “The development of the law of tort during the era of industrial capitalism was
influenced by the principle of welfarism more than capitalism.” Discuss.
THE PERIOD OF FINANCE CAPITAL.
This was a period of monopoly capital. It emerged from industrial capitalism which was
geared towards profit accumulation. There was a lot of competition and massive
technological innovation. Because they produced for an unplanned market and due to
stiff competition some industrialists were out competed, undercut, forced to sell their
capital or became subsidiaries of bigger enterprises and monopolies begun to emerge.
This was due to the cost of production. The price of raw materials was rising and
monopolies had to be organized to control the price of the raw materials. Monopolies
emerged through two main processes: centralization and concentration. Concentration is
the process of accumulation (ploughing back the profits into production in order to
accumulate value.) it is a quantitative process. Centralization is a qualitative process.
Capital already accumulated is spread among smallholdings that are merged into bigger
units e.g. cartels that are more qualitative as smaller units. The two processes affect each
other: after accumulation, there is a better position to centralize. These processes resulted
in to monopolies and since they grew out of competition they became self- enhancing
and they grew bigger and bigger in to international monopolies.
THE NEW ROLE OF BANKS.
The formation of monopolies also occurred in the field of banking. Bigger banks took
over smaller ones. Through credit facilities, they became universal keepers and
distributors of capital/ means of production. They accelerated and intensified the process
of centralization and concentration through the credit facilities. They determined which
enterprise should be funded and this favored the big monopolies at the expense of the
small firms. The high profile of the banks is reflected in the collapse of the stock
exchange. This was because they collected large sums of money through extending
credit, discounting bills of exchange and maintaining current accounts.
FINANCE CAPITAL
This was not money capital but a social phenomenon that occurred in the 1870’s. One of
the most important developments in this period is the emergence of a close connection
between the banks and the industries. Previously banks had been intermediaries for
deficit and surplus budgets. Banks developed a close relationship with the industries
through their multiple dealings with the industries which enabled the banks to obtain
fuller and more detailed information about the economic conditions of those enterprises.
In the result, the industrial capitalists became more and more dependent on the banks.
There was thus establishment of personal links between the banks and the big industrial

13

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

and commercial enterprises, acquisition of shares and appointment of bank directors to

boards of directors of the commercial enterprises and vice versa. This is enhanced by
appointing government representatives and civil servants to boards of these industries.
The result is that banks hold shares in industries and industries hold shares in banks.
There is a “merger”. There is no independent bank capitalism and industrial capitalism,
thus forming a new form of finance capital. Banks developed division of labor amongst
themselves, i.e. certain directors for certain areas in industry and also developed research
units to improve on production. The concentration of production and the monopolies
arising there from, the merging of coalitions between banks and industries, is the history
of the rise of finance capital.
THE EXPORT OF CAPITAL
Capital that was concentrated in Europe could not be used profitably due to over
production (capitalist production became more and more capital intensive and the labor
variable reduces) which lowers prices and the wages. There was need for cheap sources
of raw materials and the need to control such sources. Capital was exported, on the basis
of monopoly, from Europe to open up new markets, new sources of raw materials and
infrastructure in those areas.
DIVISION OF THE WORLD AMONGST MONOPOLY COMPANIES
As a result of the potential export of capital, the monopolies that emerged divided the
world amongst themselves. They curved out sphere of influence for themselves where
they could export capital exclusively and acquire raw materials cheaply to maintain their
monopoly power and keep out others e.g. I.B.E.A.Co.
PARTITION OF THE WORLD
The division of the world between companies could only be guaranteed by the state and
its power of coercion acting on behalf of the monopolies. This was the essence of
imperialism and colonization.
LEGAL DEVELOPMENTS
With the export of capital to places with cheap raw materials and access to markets,
supernormal profits were earned. These profits provided an opportunity to make
concessions that were necessary for capitalism to continue. This was because the conflict
between the capitalist and the working class has sharpened. By the mid 19th century and
onwards the working class had organized themselves into trade unions and socialist
parties to overthrow capitalism. They cultivated socialist ideologies like Marxism and
socialist revolutions. Capitalism was therefore under siege and it became necessary to
make concessions to the working class to alleviate their living conditions and maintain
capitalism. The concessions are represented through welfarism to benefit the working

14

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

class. There were unemployment benefits, compensation in case of injuries and insurance
to protect the working class. These were not based on tort but statute.
Within the law of torts, the concessions were represented in the relative liberalization of
the law. a) There developed liability in negligence based on fault which was a broad basis
of liability for the manufacturers, liability in negligence based on statute and the law was
no longer exclusive b) The defenses of common employment, voluntary assumption of
risk and contributory negligence were modified.
Common employment and contributory negligence were modified by statute.
Contributory negligence was no longer an absolute defense. Rather the damages a
plaintiff receives are reduced. Common employment was abolished by statute - The
courts modify the defense of voluntary assumption of risk. Court imposed stringent
measure for it such that it no longer afforded much protection to the industries. c) The
new technological developments as a result of the industrial revolution produced new
risks. The chemical industry was invented and became the basis of manufacture. This led
to mass production of consumer products, which presented new risks to the consumers
due to the quality of products. Product liability was developed to safe guard consumers,
which became the basis of the law of negligence. See Donoghue V. Stevenson d) There
also developed liability for negligent misstatements mainly in respect of banks that gave
investment advice and other such firms. See Hedley Byrne & Co. V. Heller Relationship
between the law of tort and insurance:
Insurance provided an opportunity for people to insure against new risks that
technological developments presented. There was social insurance by the welfare state
e.g. motor accidents insurance and health insurance.
LAW OF TORTS IN UGANDA
With the exportation of capital to Uganda, it was imperative that the legal system be
exported as well. In Uganda English law was received as it was on the 11th of August
1902. Although the legal principles theoretically existed, the actual practice was lacking.
Torts like product liability are not compensated because of financial constraints.
RECEPTION AND EVOLUTION OF ENGLISH LAW IN UGANDA
Uganda was declared a British protectorate in 1894. Sir Harry Johnson came as a special
commissioner to negotiate the 1900 Buganda agreement and it was regarded as the first
constitution. In 1902, we had the Uganda Order in Council which provided that the
jurisdiction of the court would be exercised so far as circumstances permitted upon the
principles of and in conformity with the substance of the law for the time being in force
in England. There was no parliament or law making body but the administration was
governed by the OIC. It thus brought in the English law.

15

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

The OIC, (1) established the high court of Uganda. (2) Through its amendment in 1911,
it clearly provided for the date of reception of the law of England. 3). It introduced the
repugnancy doctrine. The court had jurisdiction to hear nonnatives and cases which
involved a native and a non native. The 1911 amendment is important in the sense that it
established the date of reception of English law, that is, 11th August 1902. Any law
existing in England as at 11th August 1902 would be the law enforced in Uganda.
Jurisdiction was to be exercised in conformity with the substance of the common law,
doctrines of equity and statutes of general application in courts in England on 11th
August 1902. The 1902 OIC brought in law though of English origin but from India. It
provided that civil procedure, criminal procedure and the penal code of India except so
far as it may otherwise be provided would apply in Uganda. It remained the substance of
the law till 1962.
The Judicature Act 1962 was made by the parliament of Uganda by then. It provided in
sec 2 that the substance of the common law of England, doctrines of equity in force in
England on the date of reception shall continue to apply provided the said common law,
doctrines of equity and statutes of general application shall be in force in Uganda only so
far as the circumstances of Uganda and its inhabitants permit, subject to such
qualifications as local circumstances may render necessary. The Judicature Act 1967,
ended the statues of general application as the laws applicable in Uganda. This was not in
expressed terms. It was simply an omission on their being mentioned. See UG motors
Ltd v Wavah Holdings Ltd. Art 20, of the 1902 OIC provided as follows: in all cases,
civil and criminal to which natives are parties every court case shall be guided by native
law so far as applicable and is not repugnant to morality or inconsistent with any OIC or
ordinance or regulation or rule made under any OIC or ordinance. In summary, the law
applied is categorized as statutory law: principal and subsidiary law, also known as
written law customary law, other than criminal law applied law: law which is made by
British parliament and accepted by the judicature statute doctrine of equity Note: see 1st
schedule of the judicature act for applied law.
What is common law?
Common law is the common sense of a community crystalized and formulated by our
ancestors. It’s the customary law uniformly accepted in society. It evolved through
certain courts in England through their administration of justice. They recognized and
applied certain customs as being uniform. Thus its either: the system which puts
emphasis on legal decisions (the doctrine of precedent) or common law according to
common law countries and is civil law.
How did common law become part of the law applied in Uganda?

16

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

The Africa Order in Council of 1889 required the consul to exercise jurisdiction in
conformity with the substance of the law in England. Specifically, for Uganda it was the
1902 OIC. These continued to operate till independence when they were repealed and the
judicature acts came in to carry on the substance of the application of the common law
What are the present guidelines/ principles to the application of common law?
Guiding principles in application of common law “substance of the common law”; court
does not apply the whole common law but the substance of it applied only in so far as the
circumstances permit if there is a conflict between the rules of equity and common law,
the rules of equity prevail because the principles of equity (natural justice) are more
acceptable and less alien than the common law. The MCA sec 10 (3) says if in any cause
or matter there is a conflict or variance between the rules of equity and rules of common
law with reference to the same subject matter, the rules of equity shall prevail. The
contract act sec. 3 specifically provides that the common law of England shall apply.
INTRODUCTION TO THE LAW OF TORTS THE NATURE OF A TORT
A tort is committed against an individual (which includes artificial persons) as opposed to
the State. This is because all persons have protected rights at law and abuse or violation
of such rights may occasion the claim of damages, injunctions etc.
The standard tort consists of the following elements:
Act or omission by the Defendant;
Damage occasioned to a claimant as a consequence of the act or omission; and
This can be represented by the widely accepted model: act (or omission) +
causation +protected interest + damage = liability
The main purpose of the law of tort law is compensating the victims of wrongdoing for
the injuries they suffer as a result.
FUNCTIONS AND MEANING OF THE LAW OF TORTS
Functions of the Law of Torts
It is not possible to assign any one aim to the law of torts, which is not surprising when
one considers that the subject comprehends situations as disparate as ‘A’ carelessly
running down ‘B’ in the street; or ‘C’ calling ‘D’ a thief, or ‘E’ giving bad advice to ‘F’.
The law of torts has primarily four functions –
1). It provides remedies for wrongs;
2). It provides compensation for the wrongs
3). It acts as a deterrent and provides protection; and,
4). Tort law is concerned with corrective justice and distributive justice.

17

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

In general, therefore, the law of torts exists for the purpose of preventing men from
hurting one another, whether in respect of their property, their persons, their reputations
or anything else which is theirs. The fundamental principle of this branch of the law is
‘alterum non laedere’ – to hurt nobody by word or deed.
An action of tort is therefore a claim for pecuniary compensation in respect of damage
suffered as the result of the invasion of a legally protected interest. An interest is a claim
or demand or want or desire put forward by man in a civilized society.
The task of courts is first, to decide which interests should receive legal protection, and
secondly, to hold the balance between interests which have received protection. It is
obvious that not all objects of human desire can or should receive legal protection.
Tort Defined
A tort is a civil wrong for which the remedy is a common law action for unliquidated
(unspecified/unquantified) damages and which is not exclusively the breach of a contact
or the breach of a trust or other equitable obligation (See pages 14-15 of SALMOND
AND HEUSTON ON THE LAW OF TORTS, 26TH EDITION)
Tortuous Liability Defined
Tortuous liability arises from the breach of duty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages
The person who sustains injury or suffers pecuniary damage as the result of tortuous
conduct is known as the plaintiff, and the person who is responsible for inflicting the
injury and incurs liability for the damage is known as the defendant or tortfeasor.
Graphically, tortuous liability is constituted as follows: Duty of care (owed to persons
with whom there is no contractual liability) + negligence performance of that duty.
E.g. if a person fails to maintain his property and part of his property falls off and injures
another person, the property owner is liable for the damages to that person, even though
it may be a passerby with whom there are no contractual obligations”.
LAW OF TORT DISTINGUISHED FROM CRIMINAL LAW AND LAW OF
CONTRACT
Tort versus Criminal Law
A tort is a civil wrong. Proceedings in a tort are therefore civil, that is to say, the purpose
is to enforce some right claimed by the plaintiff as against the defendant. Criminal
proceedings on the hand aim at achieving the objective of punishing the Accused for
some act of which s/he is accused.
It is often the case that the same wrong is civil and criminal – capable of being made the
subject of proceedings of both kinds e.g. assault, libel, theft and malicious damage to

18

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

property. Speaking generally, in all such cases, the civil and criminal remedies are not
alternative but concurrently, each being independent of the other. The wrong doer may be
punished criminally by imprisonment or otherwise and also compelled in a civil action to
make compensation or restitution to the injured person e.g. a negligent driver who hits
into a person, can be prosecuted for a criminal offence of careless driving and be sued in
a civil matter (tort of negligence) for damages by a person whom he hit into.
Tort versus Law of Contract
The distinction between tort and contract is that the duties in tort are primarily fixed by
law, while in the latter they are fixed by the parties themselves. Referring to a tort for
example, a person would say as follows: I am under a duty not to assault you, not to
slander you, not to trespass on your land, because the law says I am such under such a
duty and not because I have agreed to undertake such a duty.
In tort, the duty is towards persons generally whereas in contract it is towards a specific
person or persons.
The core of contract is the idea of enforcing promises whereas tort aims principally at the
prevention or compensation of harms.
GENERAL CONDITIONS OF LIABILITY IN TORT
Faulty and Non-Faulty Liability What
is a fault based tort?
This question is largely concerned with the mental element of tort.
“It may not be sufficient for the claimant to demonstrate that the defendant’s act or
omission caused them damage in order to succeed in an action……it may also be
necessary for the claimant to show a particular state of mind on the part of the defendant.
Where such a state of mind needs to be proved, it is said to be a fault-based
tort ........ where no such state of mind needs to be proved it is said to be a strict liability
tort……”
With time, fault based tort has shifted from being a state of mind to being a judicially set
standard of conduct which is objectively set. The law finds ‘fault’ in a failure to live up to
an ideal standard of conduct (negligence). Therefore, ‘fault’ is today not an essential
element in tortuous liability.
The position of Intention, Malice and Motive in Tort
Intention in tort is generally irrelevant. A practical joker will be held liable in the tort of
negligence if he frightens another by a joke causing nervous shock to that person See
WILKISON V. DOWNTON (1897) 2QB 57
Facts: ‘A’ by way of a practical joke, falsely told the plaintiff, a married woman, that
her husband had met with an accident whereby both his legs were broken. She believed

19

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

this and so violently upset by the consequent nervous shock that she had a serious
illness. ‘A’ was held liable.
In tort, the term ‘malice’ has two meanings as follows:
The intentional doing of some wrongful act without proper excuse; and
To act with some collateral or improper motive
With respect to the latter the general principle is that malice is irrelevant in the law of tort
(Exceptions: torts of malicious prosecution and nuisance).
If one has a right to do something, then his motive in doing it is irrelevant. The law in
general asks merely what the defendant has done, not why he did it. A good motive is no
justification for an act otherwise illegal (exceptions: defences of necessity, private
defence for they depend to a certain extent on a good motive on the part of the
defendant), and a bad motive does not make an act otherwise legal. The leading case here
is
BRADFORD CORPORATION V. PICKLES [1895] AC 587.
Brief facts:
The defendant intentionally sank a shaft in his land, thereby spoiling the supply of
underground water. His sole motive in doing so was to coerce the plaintiffs to buy this
land at his own price. The court held that the fact that the defendant had a bad motive did
not make an otherwise lawful action unlawful.
There are two exceptions to the general principle that malice is irrelevant in tort i.e. torts
where malice is a significant ingredient. These are torts of malicious prosecution and
nuisance. The case in point is that of
CHRISTIE V. DAVEY [1893]1 CH316
Brief facts:
The Plaintiff and defendant lived in adjourning houses. The plaintiff gave music lessons
and this annoyed the defendant. In retaliation the defendant banged on the wall and
shouted while the lessons were in progress. The plaintiff was held to be entitled to an
injunction because of the defendant’s malicious behavior”
Damnum Sine Injuria
There are many forms of harm which the law takes no account. Damage so done and
suffered is called ‘damnum sine injuria’. For example, the harm done may be caused by
some person who is merely exercising his own rights; as in the case of loss inflicted on
individual traders by competition, or when the damage is done by a man acting under
necessity to prevent a greater evil, or in the exercise of statutory authority. Or the courts
may hold, on balancing the respective interests of the parties that sound policy requires
that the interest of the defendant should prevail over those of the plaintiff e.g.

20

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

BRADFORD CORPORATION V. PICKLES (1895) A.C. 587 where the court was of the
view that the natural to support of a land owner is subordinate to the natural right of his
neighbour to exploit his property by the extraction of underground water not percolating
through undefined channels, whether the defendant had acted intentionally or carelessly.
Other examples may be found in the law relating to damage caused by defamatory
statements made on a privileged occasion. Injuria Sine Damno
Just as there are cases in which damage is not actionable as a tort (‘damnum sine
injuria’), so conversely there are cases in which behavior is actionable as a tort, although
it has been the cause of no damage at all (‘injuria sine damno’). Torts are of two kinds –
namely, those which are actionable per se, and those which are actionable only on proof
of actual damage resulting from them. Thus the act of trespassing upon another’s land is
actionable even though it has done the plaintiff not the slightest harm.
Joint and Several Tortfeasors
Where two or more people by their independent breaches of duty to the plaintiff cause
him to suffer distinct injuries each one of them is liable for his damage. However, if two
or more breaches of duty by different persons cause the plaintiff to suffer a single injury,
the plaintiff can sue all or any one of them for his full loss. Thus the proceedings shall be
dealt with as a joint liability or several (separate) liability. In ROOKE V. BOOL (1928)
2QB. 578, each of the two men searching for a gas leak applied naked light to a gas pipe
in turn and one of them causing an explosion. They were held to be joint tortfeasors.
Persons are joint tortfeasors when they are responsible for one tort and they must have
conceited their efforts in the commission of that particular tort. Examples of joint
tortfeasors are crooks beating one person, joint occupiers, vicarious liability (master and
servant) or a principal allowing his agent to commit a tort. Here, the following principles
apply:
One tortfeasor has a right of contribution from any other tortfeasor who is or would if
sued have been, liable in respect of the same damage;
The Court awards whatever contribution is just and equitable, having regard to the extent
of the joint tortfeasor’s responsibility for the damage; this in the court’s discretion
amount to complete indemnity.
See:
BROOKE V. BOOL (1928) 2QB. 578 above.
LISTER V. ROMFORD ICE AND COLD STORAGE CO. [1957] A.C.555 H.L UNIT
2:TRESPASS TO THE PERSON

21

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

2.1 ASSAULT AND BATTERY

Any direct intentional interference with the person of another is actionable in the absence
of lawful justification. It is now settled that if the interference is unintentional the injured
party’s only cause of action lies in negligence. Trespass to person is actionable per se,
i.e., without proof of special damage. The tort seeks to protect personal integrity, which is
regarded as being fundamental that it is protected even in the absence of damage. The tort
of trespass to persons is a fault- based tort-it is therefore not actionable in the absence of
intention. See the case of FOWLER V. LANRING [1959] 1 Q.B. 426. There are three
main forms of trespass to a person, namely, assault, battery and false imprisonment and
their common element is that the wrong must be committed by “direct means”. Any
direct invasion of a protected interest from a positive act was actionable subject to
justification. If the invasion was indirect, though foreseeable, or if the invasion was from
an omission as distinguished from a positive act, there could be no liability in trespass
though the wrong-doer might have been liable in some other form of action. The
principal use today of these torts relates not so much to the recovery of compensation but
rather to the establishment of a right, or a recognition that the defendant acted unlawfully.
These torts are actionable without proof of damage (or actionable per se), they can be
used to protect civil rights, and also will protect a person's dignity, even if no physical
injury has occurred (for example the taking of finger prints).Acts of trespass to the person
are generally crimes as well as torts
Assault
An assault is an act which intentionally causes another person to apprehend the infliction
of immediate, unlawful, force on his person.
It is an attempt or a threat to hurt
another, coupled with an apparent
present liability and intention to do
the act. Actual contact is not
necessary in an assault, though it is
in a battery. But it is not every
threat, when actual personal
violence does
not lie that constitutes an assault; there must, in all cases, be the means of carrying the
threat into effect. Assault can be defined as an act of the defendant which causes the
claimant reasonable apprehension of the infliction of a battery on him by the defendant.
While Battery occurs where there is contact with the person of another, and assault is
used to cover cases where the claimant apprehends contact.

22

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

The intention as well as the act makes an assault. Therefore, if one strikes another upon
the hand, or arm, or breast in discourse, it is no assault, it is….; but if one, intending to
assault, strikes at another and misses him, this is an assault; so if he holds up his hand
against another, making a fist in a threatening manner, and says nothing, it is an assault.
Initially it was thought that mere words did not amount to an assault. But the words
which the party threatening uses at the time may either give gestures such a meaning as
may make them amount to an assault, or, on the other hand, may prevent them from
being an assault. Assault of course requires no contact because its essence is conduct
which leads the claimant to apprehend the application of force. In the majority of cases
an assault precedes a battery, but there are cases which occur the other way around like a
blow from behind inflicted by an unseen assailant.
It was stated earlier that some bodily movement was required for an assault and that
threatening words alone were not actionable, as aptly laid down in R v Meade and Belt
(1823) 1 Lew CC 184, that 'no words or singing are equivalent to an assault'. This latter
stand was rejected by the House of Lords in R. vs. Ireland, where it was opined that
threats on the telephone may be an assault provided the claimant has reason to believe
that they may be carried out in the sufficiently near future to qualify as “immediate”. The
House of Lords have more recently stated that an assault can be committed by words
alone in R v Ireland [1997] 4 All ER 225, and the Court of Appeal in R v Constanza
[1997] Crim LR 576 opined that, It is much more authoritative that words will not
constitute an assault if they are phrased in such a way that negatives any threat that the
defendant is making.
See: Tuberville v Savage (1669) 86 ER 684
Stephens v Myers (1830) 172 ER 735
The claimant must have reasonably expected an immediate battery. Thus in Stephens v
Myers (1830) 172 ER 735, the defendant made a violent gesture at the plaintiff by
waiving a clenched fist, but was prevented from reaching him by the intervention of third
parties. The defendant was liable for assault.
BATTERY
A battery includes an assault which briefly
stated is an overt act evidencing an immediate
intention to commit a battery. It is mainly
distinguishable from an assault in the fact that
physical contact is necessary to accomplish it.

23

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

Battery is the intentional and direct application of physical force to another person. It
does not
matter whether the force is applied directly to the human body itself or to anything
coming in contact with it. Battery requires actual contact with the body of another person
so a seizing and laying hold of a person so as to restrain him; spitting on the face, taking
a person by the collar, are all held to amount to battery.In Cole v Turner (1704): 'The
least touching of another in anger is a battery'. However, such a widely drawn principle
must inevitably be subject to exceptions: Collins v Wilcock [1984] 1 WLR 1172
Controversially, the Court of Appeal said that there must be a 'hostile touching’: Is
'hostility' a necessary element of battery? In Re F [1990] 2 AC 1 (at p 73), Lord Goff said
that he doubted whether it is correct to say that the touching must be hostile, and further:
'the suggested qualification is difficult to reconcile with the principle that any touching of
another's body is, in the absence of lawful excuse, capable of amounting to a battery and
a trespass.'
If a person intentionally applies force directly to another, the claimant has a cause of
action in trespass. However, if a person does not inflict injury intentionally, but only
unintentionally, the claimant only has a claim. The defendant's act must cause direct
damage, see: Scott v Shepherd (1773) 2 B1 R892.
Thomas V Num [1985] 2 All ER 1: The plaintiffs were members of a branch union of
the National Union of Mineworkers (the NUM). In March 1984 the branch union voted
to support strike action against the Mineworkers' employer (the NCB) and in May the
national executive of the NUM indorsed proposals by various branch unions for strike
action and set up a coordinating committee to coordinate industrial action against the
NCB, including the co-ordination of secondary picketing by branch unions outside their
respective areas. In November the plaintiffs decided not to carry on with the strike and
returned to work at their mines. However, the presence of 60 to 70 pickets outside the
colliery gates each day and the accompanying demonstrations and abusive and violent
language made it necessary for working miners, including the plaintiffs, to be brought
into the collieries by vehicles and for the police to be present. The plaintiffs sought
interlocutory injunctions against the branch union, its executive officers and trustees, and
against the NUM and its coordinating committee. The plaintiffs contended, inter alia, that
the picketing at the colliery gates was an actionable tort because it involved criminal
offences under s 7 of the Conspiracy and Protection of Property Act 1875, such as using
violence to or intimidating other people, persistently following other people, and
watching and besetting the place of work of other people, and (ii) that in any event the
picketing at the colliery gates was an actionable tort either as an assault, an obstruction of

24

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

the highway, an unlawful interference with contract or intimidation to compel the

plaintiffs and other working miners to abstain from working.
And it was held that:
(1) It did not follow that because picketing was an offence under section 7 of the 1875 Act it
was therefore tortious, since in order to establish an offence under section 7 it was
necessary first to show that the picketing amounted to a tort.
(2) The picketing at the colliery gates was not actionable in tort either (a) as an assault, since
working miners were in vehicles and the pickets were held back from the vehicles by the
police and therefore there was no overt act against the working miners, or (b) as
obstruction of the highway, since entry to the collieries was not physically prevented by
the pickets and in any event if there was an obstruction it was not actionable at the suit of
the plaintiffs because it did not cause them any special damage, or (c) as an unlawful
interference with contract, since the picketing did not interfere with the performance of a
primary obligation under the plaintiffs' contracts of employment with the NCB.
Accordingly, the plaintiffs could not complain on any of those grounds that the picketing
and demonstrations were tortuous.
(3) However, on the principle that any unreasonable interference with the rights of others
was actionable in tort, the picketing was tortious if its effect was that the working miners
were being unreasonably harassed, in the exercise of their right to use the highway for
the purpose of entering and leaving their place of work, by the presence and behaviour of
pickets and demonstrators. Since the plaintiffs had the right to use the highway to go to
work and since the picketing by 60 to 70 pickets in a manner which required a police
presence was intimidatory and an unreasonable harassment, the picketing at the colliery
gates amounted to conduct which was tortious at the suit of the plaintiffs.
Per curiam. Mass picketing, i.e. picketing which by sheer weight of numbers blocks the
entrance to premises or prevents the entry thereto of vehicles or people, is both common
law nuisance and an offence under section 7 of the 1875 Act.
But the judgement stated that the defendants are entitled to the immunity provided by
section 13 of the Act of 1974 which follows that the plaintiffs have not shown an
arguable case against these defendants and thus, the judge dismissed the plaintiff's
application.
Wilson V Pringle [1986] 2 All ER 440: The plaintiff and the defendant were two
schoolboys involved in an incident in a school corridor as the result of which the plaintiff
fell and suffered injuries. The plaintiff issued a writ claiming damages and alleging that
the defendant had committed a trespass to the person of the plaintiff. In his defence the
defendant admitted that he had indulged in horseplay with the plaintiff and on the basis

25

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

of that admission the plaintiff applied for summary judgment under RSC Ord 14. The
registrar refused to enter judgment but on appeal by the plaintiff the judge held that the
defendant had admitted that his act had caused the plaintiff to fall and in the absence of
any allegation of express or implied consent the defence amounted to an admission of
battery and consequently an unjustified trespass to the person. He accordingly gave the
plaintiff leave to enter Judgment. The defendant appealed to the Court of Appeal,
contending that the essential ingredients of trespass to the person were a deliberate
touching, hostility and an intention to inflict injury, and therefore horseplay in which
there was no intention to inflict injury could not amount to a trespass to the person. The
plaintiff contended that there merely had to be an intentional application of force, such as
horseplay involved, regardless of whether it was intended to cause injury.
Held - An intention to injure was not an essential ingredient of an action for trespass to
the person, since it was the mere trespass by itself which was the offence and therefore it
was the act rather than the injury which had to be intentional. However, the intentional
act, in the form of an intentional touching or contact in some form, had to be proved to be
a hostile touching, and hostility could not be equated with ill-will or malevolence, or
governed by the obvious intention shown in acts like punching, stabbing or shooting or
solely by an expressed intention, although that could be strong evidence. Whether there
was hostility was a question of fact in every case. Since the defence did not admit a
hostile act on the part of the defendant there were liable to judicial trial issues which
prevented the entry of summary judgment. The appeal would therefore be allowed, and
the defendants given unconditional leave to defend.
Per Curiam. Where the immediate act of touching does not of itself demonstrate hostility
the plaintiff should plead the facts alleged to do so.
Defenses to assault and battery
Lawful arrest. Where the defendant is carrying out a lawful arrest no tort is committed.
The precise procedure must be carried out in order to make an arrest. The arrested person
must be told the true grounds on which they are being arrested- exceptions are in the
event where the person to be arrested is resisting.
Consent- some examples include boxing, sporting events, medical operations.
Self- Defence- Self-defence is a defence where reasonable force is used in defence of the
claimant's person, property or another person. What amounts to self defence will be a
question of fact in each case but the basic principle is that the force used must be
reasonable in proportion to the attack.

26

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

Contributory negligence
Prevention of trespass or ejection of a trespasser. It is lawful for any occupier of land, or
for any other person with the authority of the occupier, to use a reasonable degree of
force in order to prevent a trespasser from entering or his movements or to eject him after
entry.
Defendant acting in support of the law. Sometimes an assault or imprisonment may be
justified on the ground that the defendant was acting in support of the law. The onus of
proving legal justification lies on the defendant.
Parental and other authority. A parent is not guilty of an assault if he physically
interferes with his or her child by way of reasonable restraint or chastisement, or
therapeutic reasons.
Inevitable accident. Inevitable accident provides a good excuse for a prima facie
trespass which is otherwise actionable. An inevitable accident has been defined as an
event over which the defendant had no control, and the effects of which would not have
been avoided by the exercise of the greatest care and skill.
WEEK 4: INFLICTION OF MENTAL SUFFERING
Intentional infliction of mental
suffering/ emotional distress generally
involves some kind of conduct that is
so terrible that it causes severe
emotional trauma to the victim. In
such cases, the victim can recover
damages from the person causing the
emotional distress. Not all offensive
conduct qualifies as
intentional infliction of emotional distress, however. People in society must necessarily
deal with a certain level of rude or offensive conduct. When the conduct rises to a truly
reprehensible level, though, recovery for the resulting emotional trauma becomes
available.
Intentional Infliction of Emotional Distress: The Elements
1. Extreme or outrageous conduct that
2. Intentionally or recklessly causes
3. Severe emotional distress (and possible also bodily harm)
If the situation satisfies all of the elements above, the person behaving in the extreme and
outrageous manner is liable for both the severe emotional distress and the bodily harm
that results from the stress (a miscarriage, for example). In addition, parties may

27

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

sometimes recover for emotional distress under circumstances where the extreme and
outrageous conduct wasn't even directed at them. Typically, this kind of claim involves
extreme or outrageous conduct towards the claimant's family member while in the
claimant's presence. Here are some of the general elements of the injury:
1. Extreme and outrageous conduct
2. Directed at a third person that
3. Intentionally or recklessly causes
4. Severe emotional distress
To a member of the third person's immediate family (whether or not bodily harm occurs),
or to any other person present if bodily harm occurs
Extreme and Outrageous Conduct
Clearly, one of the most important issues in any claim for intentional infliction of
emotional distress is defining what exactly constitutes extreme and outrageous conduct.
This is a requirement for a claim for intentional infliction even if the actor behaved with
malice and/or harmful intent. Extreme and outrageous conduct goes beyond merely being
malicious, harmful, or offensive. People must have a certain level of thick skin and
possess the ability to weather ordinary rude or obnoxious behaviour for example, when
the negligent infliction of mental suffering occurs between people involved in intimate
relationships, the question on whether this is sufficient grounds for bringing a tortuous
action becomes a very important one. In Twyman v Twyman, the court held that
“Married couples share an intensely personal and intimate relationship. When discord
arises, it is inevitable that the parties will suffer mental suffering, often severe.”
Therefore, the question whether infliction of mental suffering is in itself actionable in the
case of intimate relationships seems to be a valuable question. While it is true that mental
suffering is a part and parcel of married life, I respectfully disagree with the court. Just
because there is bound to be mental suffering in a marriage, it should not absolve a
spouse from an increased duty of care on each spouse to ensure that there is no infliction
of severe mental suffering. Such a duty is required of a partner in a marriage to ensure the
smooth functioning of a family which is the foundation block of society.
In order to rise to this level, the conduct must exceed all possible bounds of decency.
Normal insults or rudeness don't normally qualify as extreme and outrageous conduct,
although they can rise to that level if there is some kind of special relationship between
the parties, That is, ordinary insults or actions can constitute extreme and outrageous
behavior if the actor knows that the victim is particularly susceptible to emotional
distress due to a physical or mental condition or abnormality. For example, if Adam

28

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

knows that Barbara is intensely claustrophobic and intentionally locks her in a closet to
scare her, she could possibly recover for intentional infliction of emotional distress.
Exercising a legal right can never amount to intentional infliction of emotional distress,
however even if the behavior does cause some severe emotional trauma. If a landlord
properly initiates eviction proceedings against a sick and destitute widow who has not
paid rent in a year, his actions won't constitute intentional infliction of emotional
distress even if the widow does in fact suffer an extreme emotional reaction. Since the
landlord was only exercising his legal rights, his behavior is most likely privileged. In
the end, the court makes the final decision on whether the conduct in question rises to
the level of extreme and outrageous.
Intent/Recklessness
The actor must act with intent or recklessness in order to have a valid claim. In other
words, the actor must intend to cause severe emotional distress or know that severe
emotional distress is likely to occur. For example, if someone receives a text message
from their significant other while at a friend's house, becomes angry, and smashes the urn
containing their friend's mother's ashes, the friend could possibly win an intentional
infliction lawsuit under the theory of reckless disregard.
Severe Emotional Distress: In order to satisfy the elements of an intentional infliction
claim, the emotional distress in response to extreme and outrageous behavior must reach
a "severe" level. The exact definition of severe emotional distress is vague, and plaintiffs
must prove to the court that the emotional distress they experienced reached a sufficient
level of severity to justify an award for intentional infliction.
Some guidelines do exist to help determine whether an emotional disturbance constitutes
severe emotional distress. When extreme and outrageous conduct causes suffering such
that no reasonable person should have to endure it, the court will likely hold that the
experience reached the level of severe emotional distress. The intensity and duration of
the emotional distress also contribute to its severity. The longer the emotional disturbance
continues, the more likely it is to constitute severe emotional distress.
A plaintiff must use evidence to demonstrate their emotional distress to the court. For
example, a plaintiff can use persistent anxiety and paranoia resulting from a Halloween
prank gone bad to show that they suffered extreme emotional distress as a result of the
conduct.
Sometimes the very nature of the conduct in question will suffice to demonstrate that the
victim suffered severe emotional distress. If behavior is particularly disturbing, the
plaintiff may not have to offer much evidence to support their claims; the behavior itself
is so reprehensible that the emotional distress is almost assumed. Bodily harm also acts

29

September 2018
Consider the case where a person suffers severe mental suffering because the airplane he was
travelling in nearly crashed. There was no intention by the pilot to cause such mental
suffering. But severe mental Dsuowfneloraidnedgbw as caused and a vih cti m
to hbaes every rig
y Afunaduula Isaac ([email protected])
 lOMoAR cPSD| 19763056

Week 5: FALSE IMPRISONMENT

False imprisonment may sound like a person
as an indicator that severe emotional distress
has occurred. Ulcers or headaches, for
example, can show that the plaintiff has
experienced severe emotional distress that
has revealed itself through these physical
symptoms.
being dangerously restrained against their
will and at risk of being seriously injured or
killed. In a way, it is, but also can describe
other situations which aren't so very
dangerous sounding. The definition of false
imprisonment is the unlawful restraint of
someone which affects the person's freedom of movement. Both the threat of being
physically restrained and actually being physically restrained are false imprisonment. In a
facility setting, such as a nursing home or a hospital, not allowing someone to leave the
building is
also false imprisonment. If someone wrongfully prevents someone else from leaving a
room, a vehicle, or a building when that person wants to leave, this is false imprisonment.
This can apply to family members if the person desiring to leave is an adult. Spouses
have no legal right to confine each other either. False imprisonment; the word ‘false'
means ‘erroneous' or ‘wrong'. It is a tort of strict liability and the plaintiff has not to
prove fault on the part of the defendant. In short, False imprisonment is the unlawful
imposition of constraint upon another's freedom of movement from a particular place.
This tort protects a person from restraint and does not give a person absolute freedom of
movement. Thus, if there is a reasonable escape route there will be no false
imprisonment. See:Bird v Jones (1845) 7 QB 742 and Robinson v Balmain New Ferry
[1910] AC 295
Elements that constitute false imprisonment:
1. The restraint must be complete i.e.
there must be on every side of him a boundary drawn beyond which he cannot pass. In
BIRD V. JONES [1845] 7 QB 742, part of a bridge called Hammersmith was wrongfully
fenced off to provide seats to watch a boat race. The Plaintiff forced his way into the

30

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

enclosure, but was prevented from going on further. As he was in no way prevented from
returning, there was no imprisonment”. A partial restraint is not false imprisonment;
2. Knowledge of detention is not necessary.
It is not essential that the plaintiff should be aware of the fact of his imprisonment,
provided it is a fact. In GRAINGER v. HILL it was held that imprisonment is possible
even if the claimant is too ill to move in the absence of any restraint. In MERRING V.
GRAHAME-WHITE AVIATION C. [1919] 122 L.T. 44, it was held that a person
detained on aerodrome premises in order to be interrogated was held to be falsely
imprisoned although he was not aware that he was not at liberty to leave. Atkin L.J.,
said, “ it appears to me that a person can be imprisoned while he is asleep, while he is in
state of drunkenness, while he is unconscious and while he is a lunatic. Of course the
damages will be nominal.
The ground for this opinion is that although a person might not know he was imprisoned,
his captors might be boasting elsewhere that he was; and,
3. The restraint must be complete/ unlawful.
There must be on every side of him a boundary drawn beyond which he cannot pass. In
BIRD V JONES, a part of the bridge called Hammersmith was wrongly fenced off to
provide seats to watch a boat race. The Plaintiff, forced his way into the enclosure, but
was prevented from going on further. As he was in no way prevented from returning,
there was no “imprisonment”. A partial restraint is not false imprisonment.
4. Means of escape. If a person has the means of escape, but does not know it, his
detention is nevertheless false unless any reasonable man would have realized that
he had an available outlet. Thus if I pretend to turn the key of the door of a room
in which you are and take away the key, it would be unreasonable if you made no
attempt to see whether the door was in fact locked.
For example, if Bob enters a room, and Anne prevents him from leaving through one exit
but does not prevent him from leaving the way he came in, Bob has not been falsely
imprisoned.
An accidental or inadvertent confinement, such as when someone is mistakenly locked in
a room, also does not constitute false imprisonment; the individual who caused the
confinement must have intended the restraint.
False imprisonment often involves the use of physical force, but such force is not
required. The threat of force or arrest, or a belief on the part of the person being
restrained that force will be used, is sufficient.
The restraint can also be imposed by physical barriers or through unreasonable duress
imposed on the person being restrained.

31

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

For example, suppose a shopper is in a room with a security guard, who is questioning
her about items she may have taken from the store. If the guard makes statements
leading the shopper to believe that she could face arrest if she attempts to leave, the
shopper may have a reasonable belief that she is being restrained from leaving, even if
no actual force or physical barriers are being used to restrain her. The shopper,
depending on the other facts of the case, may therefore have a claim for false
imprisonment. False imprisonment has thus sometimes been found in situations where a
storekeeper detained an individual to investigate whether the individual shoplifted
merchandise. Owing to increasing concerns over shoplifting, many states have adopted
laws that allow store personnel to detain a customer suspected of shoplifting for the
purpose of investigating the situation.
Can a person be falsely imprisoned without his knowledge? Yes, according to the Court
of Appeal and the House of Lords in, respectively: Meering v Graham-White Aviation Co
Ltd (1920) 122 LT 44. However, Lord Griffiths did state in the latter case: 'If a person is
unaware that he has been falsely imprisoned and has suffered no harm, he can normally
expect to recover no more than nominal damages.
Can an omission to release a person constitute false imprisonment? Not according to
the House of Lords, at least where a person has consented to some degree of constraint
on their movement. See: Heard v Weardale Steel and Coal & Coke Co [1915] AC 67
False Imprisonment and The Constitution: The Constitution envisages certain
provisions that solely cater to the interests of the individuals especially with regard to
their personal freedom and infringement on it. The mandate of the Constitution awards
gravity to the entire spectre of rights relating to an individual's personal freedom. It is
under this ambit that the aspect of false imprisonment can be located.
Right to life and personal liberty provided for in the Constitution is a crucial provision.
The intention is to protect the life and liberty of the people from the wishful acts of the
Executive. Ideally, the imprisonment of a person cannot be ordered by anyone in the
position of power and authority if there is no law providing for the same. The law says
that a person who is arrested should be informed regarding the grounds of his arrest
(Article 23(3)). At the same time, he should be permitted to seek the services of his
lawyer. And he should be produced before the nearest court within 48 hours of his arrest.
An indirect echo of the above rights is also observed in the Article 28 ( 9 and 10), which
provides for protection against ex-post-facto laws and double jeopardy. Also see Article
23(7)
In case of violation of any of these rights, a citizen of Uganda is free to move to the
relevant court with jurisdiction under the writ petitions (Article 50). The only exceptions

32

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

to the above Fundamental Rights arise with regard to the defence and security concerns
of the nation.
Fundamental Rights guaranteed under the Constitution of Uganda stands void; therefore,
any legislation by the State or Union Legislatures running in contradiction to the above
Fundamental Rights with regard to personal liberty shall stand void. The right to freedom
of personal liberty has certain defences against it, which is basically envisaged keeping in
mind the need of the public authorities to act in the interest of public law and order in
particular and the security of the nation in general.
Defence for false imprisonment
Lawful arrest. Where the defendant is carrying out a lawful arrest no tort is committed.
The precise procedure must be carried out in order to make an arrest. The arrested person
must be told the true grounds on which they are being arrested- exceptions are in the
event where the person to be arrested is resisting.
Prevention of trespass or ejection of a trespasser. It is lawful for any occupier of land, or
for any other person with the authority of the occupier, to use a reasonable degree of
force in order to prevent a trespasser from entering or his movements or to eject him after
entry.
Defendant acting in support of the law. Sometimes an assault or imprisonment may be
justified on the ground that the defendant was acting in support of the law. The onus of
proving legal justification lies on the defendant.
Parental and other authority. A parent is not guilty of an assault if he physically interferes
with his or her child by way of reasonable restraint or chastisement, or therapeutic
reasons.
Inevitable accident. Inevitable accident provides a good excuse for a prima facie
trespass which is otherwise actionable. An inevitable accident has been defined as an
event over which the defendant had no control, and the effects of which would not have
been avoided by the exercise of the greatest care and skill.
Volenti non fit injuria is a defence as where a prison visitor agrees to be locked in a cell
with the prisoner.

Week 6: Malicious Prosecution

The Tort of Malicious Prosecution is committed where the defendant maliciously
and without reasonable and probable cause initiates against the plaintiff, a criminal
prosecution which terminates in the plaintiff’s favor and which results in damage to the
plaintiff’s reputation, person or property. As a general rule, a person who merely sets in

33

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

motion the criminal justice process by lodging a compliant is not liable in malicious
prosecution. However, abuse of the legal process will give rise to liability.
The Tort seeks to strike a fair and acceptable balance between the two opposing interest
of social policy namely;
The interest in safeguarding person from being harassed by unjustifiable litigation; and,
The interest in encouraging citizens to assist in law enforcement by bringing offenders to
justice.
The following essentials, according to Edrisa Semakula V AG constitute the
ingredients/elements of the Tort:
That the defendant instituted/instigated and continued a prosecution against the plaintiff.
That the prosecution ended in the plaintiff’s favor.
That the defendant had no reasonable or probable cause.
That the defendant acted with malice.
That the plaintiff suffered damaged to his reputation, person or property.
In Amin v. Bannerjee & Ors, the court reiterated the position above when it held that in
an action for Malicious Prosecution, the plaintiff must proof that the proceeding
instituted against him were malicious without reasonable or probable cost and that it
terminated in his favor and he has suffered damaged. To establish instigation of
prosecution, the plaintiff must show that it was the defendant who was actively
instrumental in setting the law in motion against him. In Balogun v. Amubikahun, the
Supreme Court held that to prosecute in this context means to set the law in motion
whereby an appeal is made by the defendant to some person with judicial authority in
regard to the matter in question. Thus, merely reporting a matter to the authority is not
enough, except when the defendant knowingly makes a false accusation to the police or a
judicial officer with the result that an innocent man is sent for trial: Tewain v. Singh.
In Payin v. Aliuah, the defendant had made a knowingly false report to the police to the
effect that the plaintiff has stolen some coconut from a plantation. It was held that the
defendant was liable as prosecutor for the accused’s trial since his report to the police
was a complete fabrication. It is no defence that the prosecutor withdrew the charge
before summons or warrant was issue by the Magistrate: Cassey v. Automobiles Renault
of Canada Ltd. It was also no defense that the Magistrate acted without jurisdiction:
Anold v. Johnson.
Secondly, favorable termination of the prosecution can be described as trial which came
to an end without conviction being pronounced. The underlying principle is that a man is
deemed to be innocent until he is proved innocent. So what is required is not a judicial

34

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

determination of his innocence; but merely, absence of judicial determination of his guilt.
The requirement is satisfied if;
He is discharge on merit;
The plaintiff was convicted in a lower court; but, his conviction was quashed on appeal
because of irregularity of procedure;
Where the plaintiff was acquitted of the charge in question but convicted of a lesser
offence;
Where the plaintiff was acquitted on technicality such as a defect in the indictment;
Where the prosecutor discontinued the proceeding or withdrew the charge even without
prejudice to the right to recommence;
Where the AG enters a nolle prosequi staying further proceedings on the indictment; and,
Where the charge was struck out for want of prosecution or lack of diligent prosecution.
Thirdly, in Hicks v. Faulkner, Hawkins J. defined reasonable and probable cause as an
honest believe in the guilt of the accused base upon full conviction founded upon
reasonable grounds of the existence of a state of circumstances which assuming them to
be true would reasonably lead any prudent and conscious man placed in the position of
the accused to the conclusion that the person charged was probably guilty of the crime
imputed. In Balogun v. Ambikahun the Supreme Court stated that reasonable and
probable cause entails the defendant having in his position as a reasonable and sane
person a set of fact which to an ordinary man will lead to the conclusion that the plaintiff
has committed a criminal offence. It is for the plaintiff to establish the absence of
reasonable and probable cause not for the defendant to establish its presence. The test is
objective and subjective.
In Ojo v. Lasisi, the court held that the defendant had reasonable and probable cause
based on the following facts: The house of the appellant and the defendant where the
only house within the area and the two houses shared a common wall fence. Only one
bedroom in the house of the respondents was searched as the respondent claimed that
they did not have the keys to the other rooms and lastly, a lady with them ran away when
the police came.
Fourthly, Malice exists unless the predominant wish of the accuser is to vindicate the law:
Stevens v. Midland Counties Ry Co. It includes any improper motive or purpose or any
motive other than that of simply instituting prosecution for the purpose of bringing a
person to justice. It is wider than spite or ill will and desire for vengeance. Examples of
an improper purpose amounting to malice are:
Where a landlord institutes criminal proceedings against his tenants as a device to
procure the latter’s eviction from the premises: Turner v. Ambler; and,

35

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

Where a prosecution is brought against the man in other to punish him for having given
evidence on a previous occasion: Glinski v. Mclver.
Further, from the most express malice, want of reasonable cause cannot be implied: Usifo
v. Uke. Thus, no matter how malicious the defendant may have been, he will not be liable
for malicious prosecution if he had reasonable and probable cause for believing in the
guilt of the plaintiff. On the other hand, the absence of reasonable and probable cause is
in itself sufficient evidence of malice, especially in those cases where there is sufficient
evidence that there was no genuine belief in the complaint made. However, honesty of
believe must not be confused with honesty of motive.
This tort is not actionable per se and in Savile v. Roberts, it was held that damages may
be claimed in an action under three heads;
Damage to property
Damage to person
Damage to reputation
In Amin’s Case the court held that to found an action for damages for malicious
prosecution, based on criminal proceedings the test is not whether the criminal
proceedings have not reached a stage at which they may be correctly describe as a
prosecution; the test is whether such proceedings have reached a stage at which damage
to the plaintiff occurs. For example, without issuing summons or a warrant the Magistrate
inquired into the merit of the charge in open court and eventually dismisses the
complaint. Damage to person is established where the prosecution caused the plaintiff to
be threatened with imprisonment and damage to property relates to the cost incurred by
the plaintiff in defending the charge.
Lastly, in order to show damage to fame, the plaintiff must show that the charge was
necessarily and naturally defamatory (moral stigma). In the case of Rayson v. South
London Tramways Co., damage to fame was establish where the plaintiff was wrongly
accused of traveling on a bus without paying the fair, since the accusation implied that he
was a dishonest person and a cheat. Also, in Yeboah v. Boateng, there was damage to
fame where a charge of extortion was brought against the paramount chief. But there will
be no such damage where a landlord is prosecuted for having failed to carry out a
statutory duty to cleanse his tenant’s room: Witten v. Bailey; since the charge does not
necessary carry a defamatory imputation, nor for the same reason will there be damage to
fame where the plaintiff is prosecuted for riding a bicycle without a rear light or for
pulling the alarm lever in a train without lawful excuse: Berry v. British Transport
Commission.

36

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

A recent example: Rape case: Besigye sues gov’t for malicious prosecution: Available at
https;//edge.ug/2018/07/14/rape-case-besigye-sues-govt-for-maliciousprosecution (P.TO)
Opposition figure Kizza
Besigye has resolved to sue
government for malicious
prosecution just after the
Director of Public
Prosecutions (DPP)
dropped his 12 year-old
rape case. In a statement on
Saturday, Besigye said the
rape case was first filed in
2005 and judged (by
Justice John Bosco Katutsi)
in 2006. The
regime appealed the decision of High Court in Court of Appeal. So it’s now 13 years
since the case was filed. “In the trial in the High Court, the Police chief witness
Commissioner Elizabeth Kuteesa, who was then Director of Criminal Intelligence
Department, admitted on oath that she deliberately and knowingly falsified evidence in
order to incriminate me,” he narrated. He said she falsified evidence knowing she was
committing a crime to incriminate an innocent citizen. “This is a clear case of extreme
abuse of power.” Besigye believes from the start, the case was a concoction
manufactured in State House- all the evidence that was presented in court was collected
from State House. “So it was the clearest case of political persecution orchestrated using
state institutions. “He clarified: “I have already asked my lawyers to start a process of
filing a case of malicious prosecution and seeking the attendant damages that have been
occasioned to me. He said however, that the political persecution against him is not about
to end, and that he must wake up every day to work hard to end the abuse of power by
the rogue regime. This week, the DPP declared loss of interest in pursuing an appeal
challenging the acquittal of Besigye, of rape charges, 12 years later. Dr Besigye had been
accused of raping a one Joanita Kyakuwa.
DEFENCES TO TRESPASS TO PERSON
CONSENT
Consent may be given expressly by words or be implied from conduct.
A person is deemed to consent to a reasonable degree of physical contact as a result of
social interaction (see Collins v Wilcock, above).

37

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

Those who take part in sports also consent to a reasonable degree of physical contact
during the course of play, i.e. within the rules, even to the risk of being unintentionally
injured. However, there can be no consent to deliberate acts of violence (R v Billinghurst
[1978] Crim LR 553).
What is meant by 'informed consent' and does English law recognise such a doctrine?
Informed consent is the notion that consent is not valid unless all the risks of a surgical
procedure have been explained. A person may not bring an action, in trespass or
negligence, on the ground that they had not been informed of the potential
consequences. The issue in trespass is whether the patient consented to what was being
done, and the issue in negligence is whether the patient should have been informed of
the risks. Every adult has the right to refuse medical treatment even if it will result in
permanent injury or even death. However, a person may be deprived of his capacity to
decide either by long term mental incapacity or temporary factors such as
unconsciousness or confusion or the effects of fatigue, shock, pain or drugs. In such a
case, it is the duty of the doctors to treat him in whatever way they consider, in the
exercise of their clinical judgment, to be in his best interests.
LAWFUL ARREST
The powers of arrest, exercisable by a constable or a private citizen, are contained in the
Criminal Procedure Code. An arrested person must be told, as soon as is practicable, that
he is under arrest; and the grounds for the arrest. Private citizens making an arrest must,
as soon as is reasonable, hand the arrested person over to the police. Only reasonable
force may be used to effect an arrest.
The police must not act unlawfully. See:Collins v Wilcock [1984] 1 WLR 1172
SELF DEFENCE
It has long been an established rule of the common law that a person may use reasonable
force to defend himself, another person, or his property from attack. What is reasonable
force being a question of fact in each case.
A person may make a mistake as to their right to self-defence. In such a situation, the
criminal law allows a defendant to be judged on the facts as he honestly believed them to
be: R v Williams (Gladstone) (1984) Cr App R 276 and Beckford v R [1988] AC 130.
NECESSITY
In Re. F , a case concerning when medical treatment can be justified when given without
consent, Lord Goff having explained public necessity and private necessity stated: "There
is, however, a third group of cases, which is also properly described as founded upon the
principle of necessity and which is more pertinent to the resolution of the problem in the
present case. These cases are concerned with action taken as a matter of necessity to

38

September 2018

Downloaded by Afunaduula Isaac ([email protected])

 lOMoAR cPSD| 19763056

assist another person without his consent. To give a simple example, a man who seizes
another and forcibly drags him from the path of an oncoming vehicle, thereby saving him
from injury or even death, commits no wrong. But there are many emanations of this
principle, to be found scattered through the books".
Lord Goff went on to say that the present case was concerned with action taken to
preserve the life, health or well-being of another who is unable to consent to it. The basic
requirements, applicable in these cases of necessity, were "not only (1) must there be a
necessity to act when it is not practicable to communicate with the assisted person, but
also (2) the action taken must be such as a reasonable person would in all circumstances
take, acting in the best interests of the assisted person".
Mistake
Unavoidable mistake (accident) can amount to a defence when the mistake negates the
required element of intention—or, in other words, when the person did not intend the
consequences of his or her act. So, for example, a person had no intention of coming into
contact with another person but accidentally did so, then there is no battery. Say a police
officer mistakenly believes that a felony has been committed and the officer arrests a
person whom he/she reasonably believes to have committed the felony. The mistake
would excuse the officer from battery or false imprisonment. This was decided in
Beckwith v Philby (1827) 6 B & C 635; 108 ER 585.
However, it is no defence to say that the intended consequences of the act were somehow
innocent or had a legal effect that was different from the effect which the defendant
assumed. For example, suppose a shopkeeper strikes a child on the assumption that the
act is within her lawful authority. The shopkeeper clearly intended the consequences but
she is mistaken about the legal effect of the act and her legal right to do it. She did not
intend to do something that was unlawful perhaps. But that sort of mistake is no defence
to battery or assault or, indeed, to any form of trespass. Or suppose that a police officer
has a valid arrest warrant but arrests the wrong person. The mistake will be no defence
because the officer actually intended to apprehend the person in question. Unfortunately,
the position is rather confused because of the seemingly artificial distinctions between
mistake and accident. Unavoidable mistakes often appear as innocent as do the
production of accidental (unintended) results. Hence whilst the distinction still appears as
a result of the historical development of tort it often appears to have little justification as
a matter of policy.

39

September 2018

Downloaded by Afunaduula Isaac ([email protected])