TORT LAW

BRADFORD CORP. v PICKLES[1895] AC 587

FACTS

Defendant  owned land containing underground streams which fed plaintiff's waterworks. Defendant began to sink shafts for the alleged purpose of draining certain beds on stone the effects of which were to seriously affect water supplies to plaintiff's operations. plaintiff's alleged that Defendant was not acting in good faith but to compel them to purchase his land.

ISSUE

Can a use of property which would be legal if due to a proper motive become illegal because it is prompted by a motive which is MALICIOUS??

HELD

The court held that as long as Pickles had a right to take action on his property, there is no way that can be converted to an illegal action, no matter what his motives. There was no reason why he should not demand that the city pay for his interests in the water beneath his land.

RATIO

One has the right to use his land as he wishes.

MOGUL STEAMSHIP CO LTD V

McGREGOR, GOW & Co [1889] LR 23 QBD 598

FACTS

The plaintiffs were independent shipowners who sent their ships to the cargo port to obtain cargo. An association (the defendants), also in the business of owning cargo ships, sent more ships down to the port and reduced their freights so low that the plaintiffs were unable to make a profit. They further threatened to dismiss any agents who loaded the plaintiff’s ships. The plaintiff brought an action alleging a conspiracy to injury and requested damages.

ISSUES

Whether the defendant’s actions were unlawful and deemed an indictable offence by way of a conspiracy.

HELD

The defendants had acted in an effort to protect their own profits and trade which was considered to be a lawful objective. No unlawful acts had taken place to warrant any wrongdoing, so therefore the plaintiffs had no cause of action. To prove that a conspiracy constituting an indictable offence occurred, a “matter contrary to law” would have to be shown to have occurred. Lord Halsbury found it impossible to suggest that there had been any malicious intention to injure rival traders, except in the sense that they intended their competitors to withdraw from trade. The defendant’s actions were therefore considered to be actions taken to support their own business interests. Further, unlawful acts would have to involve obstruction, violence, interference or molestation to meet the definition. None of those occurred. The appeal was upheld and no cause of action was available for the plaintiffs.

ASHBY V. WHITE (1703)

FACTS

Mr. Matthew Ashby, a cobbler, turned up to cast his vote for the British Parliament in December 1701. Ashby was turned away by William White, a constable, on the grounds that “he was no settled inhabitant of the borough, and had never contributed either to church or poor.

In spite of this his candidate won the election and no harm was caused to him. But Ashby refused to take this lying down and sued for substantial damages. The defendants contended that since Ashby had suffered no loss as his candidate had won the election, he was not liable.

His suit was successful, but the House of Commons found Ashby guilty of a breach of parliamentary privilege for having carried through his action at common law. Chief Justice Holt then upheld Ashby’s appeal, arguing that what was at issue was “a most transcendent thing, and of a high nature”.

HELD

 it was finally held that the defendant (White) by preventing Plaintiff (Ashby) from voting violated Ashby’s legal right and was entitled to damages.

Chief Justice Holt said: “Every injury imports a damage though it does not cost the party one farthing. For a damage not merely pecuniary but an injury imports a damage, when a person is thereby hindered of his rights.”

ISIDORI NDETHNGA V. EUGEN MANGALILI(1969)HCD18

FACTS

The  respondent  and  the  appellant  share  a  common  boundary  along  which respondent  (Eugen)  had  planted  trees.  The  appellant  alleging  that  these  trees, or  their  branches  on  being  blown  by  the  wind  had  fallen  on  his  land  and  had damaged  his  coffee  and  banana  trees,  sued  Eugen  for  compensation  for  the damage  caused.  On  appeal,  his  claim  was  rejected  by  the  District  Court  of Kilimanjaro  at  Moshi. Held: ……..  The  real  question  seems  to  me  to  be  whether  at customary  law  a  person  who  plants  a  boundary  tree  is  liable  if  the  tree  itself  or any  part  of  it  falls  on  his  neighbour’s  land  causing  damage  therein. 

ISSUES

 (a)  whether  a  boundary  tree which  causes  damage,  is  damage  for  which  compensation  can  be  claimed;

 (b)  whether  damage  caused  by  a  wind  –blown  tree,  is  damage  for  which compensation  can  be  claimed. 

DISCUSSION

These  questions  arise  out  of  the  arguments which  were  first  raised  in  the  District  Court.  Therefore,  as  the  court  was without  the  advantage  of  the  opinion  of  the  assessors  at  first  instance,  two Generally  speaking  boundary  trees  are  common  property  and  if  a  tree  itself  or a  branch  falls  on  to  the  land  of  the  party  who  has  not  planted  it,  that  person may  use  it  as  timber.  He  has  no  right  to  compensation  if  the  tree  is  diseased and  falls  by  itself  or  if  it  is  blown  down  by  abnormal  wind.  Should  the  person who  planted  the  tree  remove  the  fallen  tree  or  branch  from  his  neighbour’s land  that  would  be  an  interference  for  which  compensation  could  be  claimed. It  was,  consequently,  said  that  Isidori  could  claim  for  the  value  of  the  timber  if he  was  deprived  of  it,  but  he  could  not  claim  for  the loss  of  his  coffee  or banana  trees.  As  this  opinion  was  shared  equally  firmly  by  both  assessors,  I accept  their  opinion.  It  follows  that  regarding  boundary  trees  there  is  no  notion amongst  the  people  of  this  area,  following  what  in  the  general  law  would  be called  negligence  or  strict  liability  for  harbouring  dangerous  objects  which have  escaped  on  a  neighbour’s  land.  That  is  probably  due  to  the  idea  of  the joint  ownership  of  the  trees.  Accepting  the  customary  law  as  explained  by  the assessors  I  hold  that  the  District  Court  came  to  the  right  conclusion  in dismissing  Isidori’s  claim.” 

Appeal  dismissed. 

LETANG V COOPER[1965] 1 QB 232

FACTS

In the summer of 1957, the claimant was sunbathing outside on a piece of land which ordinarily served as a car park. While she was sunbathing, the Defendant reversed over her legs with his car, causing her injury. The defendant did not do it intentionally, however the claimant had the option of claiming in negligence. She did not, immediately, choose to do so. By 1961 she had decided to start a claim, but as a claim of negligence had limitation period of three years (as per the Limitation Act 1939 2 & 3 Geo.6 c.21 as amended by section 2 of the Law Reform (Limitation of Actions, etc.) Act, 1954) she made a claim under trespass to the person.

ISSUE

The issue in this case was whether it was possible to make a claim under trespass to the person if the action was negligent rather than intentional as until then the tort of trespass to the person had been applied to both types of situation.

HELD

Adopting the approach from Kruber v Grzesiak ([1963] VR 621) the court held that where the damage was caused by an action which was not intentional, then the proper action is one in negligence and not in trespass to the person. For the claimant, this meant that she could not start the action she had (based on trespass) and that her only available action was time barred. In terms of the law, the judgement of the court meant that a distinction was established between the torts of negligence and trespass to the person based on intent. In effect, this meant that the law on trespass to the person has been narrowed.

SCOTT  V    SHEPHERD(1773)2W.B1.892.l

FACTS

The defendant threw a squib, which is a small, lit fireworks, into a busy marketplace with lots of people and stalls. In order to protect themselves and avoid damage, the squib was thrown on by two other people. When it landed near to the complainant, it exploded and caused injury to his face. He later lost the use of one of his eyes. The original thrower, the defendant, was charged with assault and trespass.

ISSUE

The defendant was found liable for trespass and he appealed this decision. The defendant argued that the injury to the complainant was not caused by his actions; it was not a direct act, as others threw the squib on. The issue in the appeal was whether the defendant throwing the squib caused the injury or whether other people broke this chain of causation and the injury was caused by novus actus interveniens.

HELD

This case has become known as the Famous Squib case. The court dismissed the appeal; the injury to the complainant was the direct and unlawful act of the defendant who originally threw and intended to throw the squib. The other people were not ‘free agents’ in this situation and threw on the squib for their own safety and this was justifiable. The throwing on was classed as a continuation of the defendant’s action, which was intended. Whatever followed this was part of the defendant’s original act.

COLE V TURNER(1704)6Mond.Rep.149

FACTS

The case concerned an action brought before the court for trespass and battery. The Claimants were a husband and wife, both of who had allegedly suffered battery by the Defendant.

ISSUE

The issue in this case was the connection between anger and the tort of batter. The question was whether any touching could amount to battery or whether there had to be an element of aggression involved.

HELD

It was held that anger was a relevant element to the tort of battery and that accidental touching would not amount to battery. At the same time even a light touch could be converted to battery through the existence of anger.

“the least touching of another in anger is a battery. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery.” (Holt CJ)

TUBERVILLE V SAVAGE(1669)1Mod.Rep.3.

FACTS

Savage had made some insulting comments to Tuberville. In response, Tuberville grabbed the handle of his sword and stated, "If it were not assize-time, I would not take such language from you." Savage responded with force, causing Tuberville to lose his eye. Tuberville brought an action for assault, battery, and wounding, to which Savage pleaded provocation, to-wit Tuberville's statement.

ISSUE

The question was as to whether laying a hand on a sword and stating “If it were not assize-time, I would not take such language,” constituted an unlawful assault by placing another in apprehension of immediate violence.

HELD

It was held that this did not amount to an assault as the words indicated that no violence would ensue.

INNES V WYLIE(1844)1Car&Kir257

FACTS

A police officer was blocking a doorway

The claimant ran into him and bounced off, suffering personal injury

ISSUE

Could a claim in either battery or false imprisonment succeed?

DECISION

No

REASONS

In the battery claim, there was no intent, nor an act; the act was of the claimant

In the false imprisonment claim, the officer had just omitted to move, so had again not acted

Both claims therefore failed

           

R v IRELAND[1997] 3 WLR 534 House of Lords

FACTS

The defendant made a series of silent telephone calls over three months to three different women. He was convicted under s.47 Offences Against the Person Act 1861. He appealed contending that silence cannot amount to an assault and that psychiatric injury is not bodily harm.

HELD

His conviction was upheld. Silence can amount to an assault and psychiatric injury can amount to bodily harm.

Lord Steyn

"It is to assault in the form of an act causing the victim to fear an immediate application of force to her that I must turn. Counsel argued that as a matter of law an assault can never be committed by words alone and therefore it cannot be committed by silence. The premise depends on the slenderest authority, namely, an observation by Holroyd J. to a jury that "no words or singing are equivalent to an assault": Meade's and Belt's case 1 (1823) 1 Lew. C.C. 184. The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying "come with me or I will stab you." I would, therefore, reject the proposition that an assault can never be committed by words."

"The proposition that the Victorian legislator when enacting sections 18, 20 and 47 of the Act 1861, would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861. But the subjective intention of the draftsman is immaterial. The only relevant enquiry is as to the sense of the words in the context in which they are used. Moreover the Act of 1861 is a statute of the "always speaking" type: the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury. For these reasons I would, therefore, reject the challenge to the correctness of Chan-Fook [1994] 1 W.L.R. 689. In my view the ruling in that case was based on principled and cogent reasoning and it marked a sound and essential clarification of the law. I would hold that "bodily harm" in sections 18, 20 and 47 must be interpreted so as to include recognizable psychiatric illness."           

BLAKE  V BARNARD(1840)9c&P.626.

ABDUL JAVER HEGHJI V. ALIBHAI MITHA(1967) H.C.D.  n.235.

FACTS

Defendant  had  obtained  a  judgment  against  plaintiffs.  Subsequently,  defendant filed  in  the  High  Court  a  Chamber  Summons  applying  for  the  arrest  of  plaintiffs, alleging  that  he  had  cause  to  suspect  that  the  plaintiffs,  were  in  default  and  that they  were  about  to  leave  the  country.  On  the  bases  of  his  affidavit,  the  Court  issued  an  order  for  the  issuance  of  a  warrant  of  arrest.  Plaintiffs  were  arrested  and released  on  an  undertaking  to  appear  before  the  Court;  they  did  appear,  and were  conditionally  released  on  surrendering  their  passports  and  on  an  undertaking  to  appear  for  further  hearings.  The  defendant  then  applied  for  execution  of the  decree  in  the  original  action  by  arrest  and  detention  of  the  plaintiffs  in  civil  jail, on  the  ground  that  they  had  defaulted  in  their  payments.  This  application  was heard  and  dismissed,  the  Court  holding  that  no  default  had  occurred. Plaintiff  then  brought  an  action  alleging  “malicious  abuse  of  the  process  of law  or  alternatively  ……  a  breach  by  the  defendant  of  his  duty  of  care  ……  to avoid  careless  allegations  which  would  cause  them,  the  plaintiffs,  damage  ……” They  did  not  specifically  plead  that  the  order  for  issuance  of  the  arrest  warrant had  been  vacated  by  the  High  Court. Defendant  contended  that  their  failure  to  plead  vacation  of  the  order  was fatal  to  the  cause  of  action.  Plaintiffs  replied  that  it  was  not,  and  further  argued that  even  if  it  were  fatal  to  the  action  for  malicious  prosecution,  it  would  not  affect the  alternative  theory  of  liability  (defendant’s  breach  of  a  duty  to  avoid  careless allegations.). Defendant  also  urged  that,  throughout  the  proceedings  in  question,  he had  resorted  to  legal  counsel.  His  advocate  was  not  called,  however,  to  testify  as to  the  advice  he  had  given  defendant.

HELD

(1)  The  plaint  stated  only  one  cause  of  action for  malicious prosecution.  The  element  of  malice  is  essential:  there  is  no  action  for  breach  of an  alleged  duty  not  to  made  careless  allegations  which  could  lead  to  another person's'  arrest. 

(2)  In  an  action  for  malicious  prosecution,  it  must  be  averred  that “in  as  far  as  the  proceedings  on  which  (plaintiff)  sues  could  have  terminated  in his  favor  …….  They  have  in  fact  done  so.”  Here,  although  the  order  for  issuance of  the  warrant  may  not  have  been  vacated,  the application  for  execution  of  the  decree  was  dismissed,  and  this  was  sufficient  to satisfy  the  requirement.  (Citing  numerous  authorities,  with  an  exhaustive  discussion.) 

(3)  A  showing  that  the  defendant  sought  legal  advice  in  proceeding  against the  plaintiffs  weights  in  his  favour;  but  it  is  not,  in  itself,  sufficient  to  show  that  he had  reasonable  and  probable  cause  to  act  as  he  did.  

(4)  The  evidence  showed reasonable  cause  to  suspect  the  plaintiffs  of  default,  but  not  of  an  intention  to leave  the  country.

Judgment  for  plaintiffs.

KAGANE AND OTHERS  V. ATTORNEY GENERAL AND ANOTHER [1969]  1 EA 643

FACTS

The plaintiffs, three serving police officers, were charged  with  conspiracy  to accuse falsely  of a crime and  with  conspiracy  to pervert the course of justice.  All were acquitted, and they  thereafter brought this action against the Attorney-General and the police  officer who caused their prosecution, claiming damages for malicious prosecution and false arrest. The facts appear fully  in the judgment.

HELD

(i) whether there was reasonable and probable cause for the prosecution is primarily  to be judged on  the  objective  basis  of  whether the material known to the prosecutor would satisfy  a prudent and cautious man that the accused was probably  guilty  ( Hicks v . Faulkner  (1) adopted);

(ii) the fact that the prosecution was instituted on  the  advice  of State Counsel did not of itself constitute reasonable and probable cause.  The  material must be fairly  put to counsel and the prosecutor must still believe in his case;

(iii) once the objective test is satisfied, it may  be  necessary  to consider whether the prosecutor did not honestly  believe in the guilt of the accused; but  this subjective test should be applied only where  there is evidence directly  tending to show that the prosecutor did not believe in the truth of his case ( Glinski v. McIver  (3) adopted);

(iv) on  the facts, no reasonable person could honestly  have believed that the prosecution was at all likely  to succeed; and the second defendant was actuated by  malice.

Judgment for the plaintiffs.

CHRISTIE  V. LEACHINSKY1947)A.C.573.

FACTS

Police officers appealed against a finding of false imprisonment. The plaintiff had been arrested under the 1921 Act, but this provided no power of arrest (which the appellant knew). The officers might lawfully have arrested the plaintiff for the felony of stealing a bale of cloth, which they had reasonable grounds for suspecting.

HELD

Police officers must at common law give a detained person a reason for his arrest at or within a reasonable time of the arrest. Under ordinary circumstances, the police should tell a person the reason for his arrest at the time they make the arrest. If a person’s liberty is being restrained, he is entitled to know the reason. If the police fail to inform him, the arrest will be held to be unlawful, with the consequence that if the police are assaulted as the suspect resists arrest, he commits no offence, and if he is taken into custody, he will have an action for wrongful imprisonment.

Viscount Simon summarised a police officer’s powers of arrest at common law:

‘(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

(2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.

(3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.

(5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter.’

Lord Simonds

 '‘it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment’.'

Lord du Parcq

'‘ . . a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest, or blamed for resistance.’'

KIONYWAKI V. R[1968]  1 EA 195.

FACTS

The  appellant, in his capacity  as a divisional executive officer, ordered the complainant to attend and assist in a self-help scheme. The complainant refused, and also declined to attend the local  primary court.  The appellant thereupon, in his capacity  as a justice of the peace, had a warrant of arrest prepared and subsequently  arrested  and handcuffed the complainant  on  a  charge contrary  to s. 89C (1) of the Penal Code (which deals with dissuasion  of  persons from  assisting in a self-help scheme). The appellant was later charged with and convicted of wrongful  confinement contrary  to s. 253 of the Penal Code, the trial magistrate finding that the arrest  was  wrongful.  The appellant appealed to the High Court, where the appellant raised an issue  about  his  immunity  from  prosecution as a judicial officer performing a judicial function in arresting the complainant.

HELD

(i) the arrest was unjustified and  unlawful  because  the complainant had not committed any  offence contrary  to s. 89C (1) of the Penal Code;

(ii) the appellant, however, could claim  the protection  afforded  to  a justice by  the Magistrates Courts Act, s. 60; for although the immunity  expressly  conferred by  that section is in respect of civil process and liability, if an individual is exempted from  civil process or liability  in respect of a particular act he is immune from  criminal process for such act.

Observation obiter on the construction and  applicability  of the immunity  conferred upon judicial officers by  the Penal Code, s. 16.

Appeal allowed.

SEKADDU V. SSEBADDUKA[1968] 1 EA 213

FACTS

The respondent in 1952 caused the Mengo police to arrest the appellant on suspicion of stealing his property and the police thereupon detained the appellant. The appellant, after being released, sued the respondent in the Principal Court, Buganda, for damages for false imprisonment. The respondent in defence claimed that he was not responsible for the actions of the police, but made no attempt to justify the arrest. The Principal Court dismissed the claim, and the appellant then brought this appeal to the High Court, in November, 1965. In the High Court it was argued that the appeal should have gone to the Judicial Adviser, because the damages claimed by the appellant himself (but excluding the general damages claimed by his wife, who was also a party below) were less than Shs. 2,000/-; and a question also arose about the effect of the application to Buganda of the Magistrates’ Courts Act.

HELD

(i) the value of the subject matter of the suit for the purpose of the appeal exceeded Shs. 2,000/-;   

(ii) the High Court had jurisdiction to hear the appeal; 

(iii)  if a person sets the law in motion and causes another to be detained by the police it is no defence that the police thereby become responsible for the continued detention;

 (iv) once the detention or imprisonment is established the onus shifts to the defendant to show that it was reasonably justifiable.

Appeal allowed. Judgment entered for the appellant with costs here and below.

R. V. SEFU SAID[1964]  1 EA 178

FACTS

The respondent asked the complainant for some  liquor  and, being refused, apparently  arrested and handcuffed her. The respondent then took her to the house of the local court clerk, and being unable to  find  the  local magistrate, he asked for the keys  of the  lock-up. The court clerk said he had no keys whereupon  the respondent took the complainant  towards her house and on the way  removed the handcuffs and allowed her to go home. The  respondent having been charged with wrongful confinement contrary  to s. 253 o f  the Penal Code, the magistrate held that there was a distinction between wrongful confinement and false imprisonment and that wrongful confinement involved confinement within the confines of some  building  or place such as an enclosed courtyard and that since the respondent had not so confined the complainant he must be acquitted. On appeal by  way  of case stated,

HELD

(i) the offence of wrongful confinement under s. 253  of the Penal Code corresponds to the offence of false imprisonment under the law of England;

(ii) to establish the offence of  wrongful  confinement,  it is sufficient to prove that there was an unlawful  and  total restraint of the personal liberty  of another, whether by  detaining him  against his  will  in a particular place or by  constraining or compelling him  to go to a particular place; it need not be proved that he was confined within  the confines of some  building, structure or  a place such as an enclosed courtyard;

(iii) the facts as established constituted the offence of wrongful confinement contrary  to  s.  253  of the Penal Code.

Appeal  allowed. Order of acquittal set aside. Case remitted to the magistrate with direction to convict accused of offence charged.

R. V. SHABANI(1971)H.C.D. n. 233.

FACTS

The  accuse  was  charged M71;  28/4/71;  Mnzavas  Ag.  J. with  attempted  rape  c/s  132  of  the  Penal  Code. the  evidence  against  the  accused  was  to  the  effect  that  he  dragged  the complainant  (a  lady)  to  a  place  where  there  was  tall  grass,  threw  her  to the  ground,  drew  a  knife  and  threatened  to  kill  her  if  she  refused  to  have sexual  intercourse  with  him.  In  trying  to  accomplish  his  passions,  the accused  forced  the  complainant  to  remove  her  underpants  and  when  the accused  was  in  the  process  of  removing  his  own  under  pants,  a  police  car stopped  nearby  and  the  complainant called  for  help.  On  these  facts  the learned  Resident  Magistrate  found  that  a  charge  of  attempted  rape  could not  be  supported  but  convicted  the  accused  of  indecent assault.  The  main  issue  was  whether  or  not  the  facts  as  deduced  were sufficient  to  support  the  alternative  verdict  of  indecent  assault.  The Republic  argued  that  since  the  accused  chased  the  complainant  and knocked  her  down  when  he  had  already  decided  to  have  sexual intercourse  with  her  this  amounted  to  indecent  assault.  It  was  also contended  that  the  forcing  of  the  complainant  to  remove  her  underpants amounted to removing the underpants by the accused himself and this tantamount to indecent assault [citing R. v. HARUNA IBRAHIM (1967) H. C. D. Case No. 76]  

HELD

(1) “I have myself failed to find a local decision which supports the argument that an assault on any part of the body of a complainant which follows indecent assault. There are however, a number of authorities on this point from other jurisdictions. The question whether it was essential to prove an indecent act before a person is convicted of indecent assault or whether it was sufficient if proved that an assault, decent in itself, was indecent because it was committed with an indecent aim was discussed in R. v. CULGAN (1998) 19 N. S. W. page 160. In that case it was held that to constitute indecent assault an indecent act must be proved. The Supreme Court of New South Wales was of the view that it was not sufficient to support the charge merely by saying that the accused tried to drag the prosecutor to a place where he could have intercourse with her. This decision was followed in R. v. ABRAHAMS [1918] 32 C. P. H. 590, a South African case. These two decisions were not followed by the Supreme Court of Ontario in R. v. CHONG (1915) 32 ONTARIO 66. In that case it was held that indecent assault is an assault which has in it an element of indecency, even a merely mental one. In the case of Col. Valentine Baker – The Times of 30/7/1875, Lord Esher instructed the grand jury in the following terms: - “If a man kisses a young woman against her will and with feelings of carnal passion and with a view to gratify his passions or to excite hers, that would be an indecent assault.” He went on- “The kisses of young people in seasons of universal gaiety are not indecent, but kisses given by a man under the influence of carnal passion are indecent.” In a more recent case in England R. v. COOMBES (1961) CRIM. L. R. 54, a light touch with the hand on a woman‟s back was held to be indecent assault because, though the touch was not by itself indecent, it was accompanied with the reasoning that an assault on a lady though not indecent in itself becomes indecent assault. I also agree with the learned state attorney that the forcing by the accused of the complainant to remove her underpants amounted to removing the underpants of the complainant by the accused and as such the accused was guilty of indecent assault.”

(2) Alternative verdict confirmed.

MANTAGE AND CHACHA V. MWITA(1971) H.C.D.  n. 110.

FACTS

The  appellants  were  ordered  to  pay  Shs.  3,500/- general  damages.  for assault  resulting  in  fracture  of  the  arm  of  the  respondent.  They  had  been prosecuted  and  convicted  for  causing  grievous  harm  and  assault  causing actual  bodily  harm  and  ordered  to  pay  to  the  respondent  as  compensation Shs.  300/- and 100/- respectively.  Both  appellants  denied  that  they  had assaulted  the  respondent  and  argued  that  it  was  unfair  that  they  should  be tried  twice  and  suffer  twice.  They  also  attached  the  award  as  excessive and  unreasonable  arguing  that  they  should  not  pay  more  than  what was already  ordered  in  the  criminal case  trial

HELD

 (1)  “For  the  benefit  of  the  appellants,  I  would say  this  that when  an  unlawful  attack  is  made  upon  a  person,  two  legal  wrongs  are committed.  Firstly,  there  would  be  a  criminal  offence  and  secondly  a civil wrong.  The  person  attacked  could  start  criminal  proceedings,  by  reporting the  attack  to the  relevant  authorities,  as  it  was  originally  done  in  respect  of the  facts  of  this  case  or  prosecute  the  case  personally  as  private prosecution  or  he  could  start civil  proceedings  to  recover  damages  for personal  injuries  if  any  or  for  mere  assault  as  there  is  such  a  thing  as trespass  to  the  person  known  in  law.  Therefore,  where  the  respondent commenced  civil  proceedings  relating  to  the  same  facts  on  which  the appellants  were  convicted  in  a  criminal  trial,  he  was  exercising  his  right  to recover  damages  in  respect  of trespass  to  his  person.  Therefore,  there  was  no  question  of  the appellants  being  sought  out  and  “punished  twice”  for  the  sa me  Act.  They were  punished  once  only,  during  the  criminal  trial,  and  now  they  are  asked to  recompense  the  respondent  for  severe  harm  they  did  to  him.  Therefore, the  claim  instituted,  by  the  respondent,  was  valid  in  law.  This  disposes  of large  part  of  the  appellants  grounds  of  appeal.  These  grounds  arose  out  of ignorance  of  the  process  of  law.

 (2) There was  sufficient  evidence  to  show that  the  appellants  had  assaulted  the  respondent. 

(3)  “The  fact  that  they (appellants) were  ordered  to  pay  compensation  ….  In a  criminal trial,  is not a  bar  against  the  respondent  suing  them  in  a  civil  court  if  he  felt  that  the amount  of  compensation  was  inadequate  ……….  The  learned  magistrate was  entitled  to  weigh  the  evidence  afresh  as  it  was  produced  before  him and  award  a  reasonable  amount  in  damages.”

 (4)  Distinguishing  PAULO CAVINATO  v.  VIYTO  ANTONIA  DI  FILIPPO  [1957]  EA  535.  “In  this  case, the  respondent  suffered  the  fracture  of  the  left  arm  but  this  fracture  was fully  healed  although  the  alignment  of  the  arm  itself  was  affected.  There was  no  evidence  that  the  respondent  could  not  make  use  of  his  arm  or would  for  ever  be  unable  to  use  it.  The  other  blows  do  not  seem  to  have left  him  with  any  permanent  or  troublesome  defects.  On  the  whole,  it appeared  that  the  respondent  had  fully  recovered  from  these  injuries.” 

(5) Damages  reduced  to  Shs.  1,600/=, first  appellant  to  pay  Shs.  1,000/- second  appellant  to  pay  Shs.  600/-.

( 6)  Appeal dismissed

M'IBUI V. DYER [1967] 1 EA 315

FACTS

The plaintiff, a trader ’ s conduct at trial relevant. in  “miraa”,  and  five  others  were  travelling  by  land rover  from  Meru  district  to Nairobi late  one  night  in  order  to  deliver  a  load  of  sacks  of  “miraa”  to  the  Nairobi  market  the following  morning.  Because  of  shifta  activity  in  the  area ,  they  decided  to travel  over a secondary road  as  attacks  had  been  made  on  persons  travelling  on  the  main  road. This  secondary road crossed a number of sheep farms and while  the land rover was crossing the defendant’s  farm,  it developed minor engine trouble  and the vehicle was stopped while  running  repairs  were  carried out.  In the meanwhile,  the defendant,  a farm manager,  who had been asleep in  his  home,  was wakened by his herdsmen and told  that there  was an attack being made on his sheep boma. It was common  cause that stock-thefts were prevalent in  that area and that because of this  most of the farmers and their herdsmen were licensed to  carry firearms. The defendant, with  two  of  his staff,  drove to the sheep boma where he found his sheep scattered and then drove towards the road in  an attempt to track down the thieves. The defendant saw  the  plaintiff’s  vehicle  stopped and,  as  he  approached it, he saw two men scramble into it  and the vehicle move off. The defendant  saw  what  he  thought were a number of sheep i n the land rover but which were, in  fact, the  sacks  of  “miraa”.  The  defendant  alleged that as the land rover moved off he and his men shouted for it  to stop and he  fired  two  shots  into  the air.  The vehicle then stopped and three men, one of whom was the plaintiff, got out and ran away. The defendant then fired a  third  shot  aiming upwards  but  in  the direction of the plaintiff at a range of some 60 yards; the two other men stopped and the plaintiff disappeared.  A  search party with a  torch  discovered  him  nearby with a gunshot wound in  his shoulder and another in his leg. The plaintiff then attacked the  defendant  and  inflicted minor injuries on him,  for which the defendant counterclaim in the  suit.  The  defendant then took the plaintiff to Timau police station where the matter was reported and the plaintiff sent for hospital treatment.

The plaintiff, who had refused to have the  shotgun  pellet  removed from  his shoulder, claimed damages for his injuries and the  court  framed  the  issues on liability  as follows: – (i) Had the defendant reasonable grounds for suspecting that the  plaintiff  had committed a felony?

(ii) If so, was the defendant negligent in the particular  manner in which he used his shot-gun?

During the trial the defendant maintained the  attitude that the plaintiff was a stock-thief.

HWLD

()I in  Kenya  law  there  is no distinction between the power of a police officer and a private person to arrest without warrant on suspicion of  felony; and, so long as there are reasonable grounds for suspicion, a private person is  entitled  to  arrest  and in doing so to use such force as is reasonable in the circumstances or is  necessary  for the apprehension of the offender;

(ii)  there were reasonable grounds for suspecting that a felony  had been committed;

(iii) the defendant was not negligent in firing the first two shots in the air by  way  of warning;

(iv) the defendant was negligent in firing the third shot in the direction of the plaintiff and was not protected by  any  of the provisions  of  the  criminal law as the amount of force used in the particular circumstances was neither reasonable nor necessary ;

(v) the fact that the plaintiff had refused to have  the pellet removed from  his shoulder  and  the  fact that his inability  to resume  work was largely  due  to  psychological  factors  would  be  taken  into account in assessing the damages;

(vi) shooting  for the purpose of arrest on suspicion  of felony  being to some  extent analogous to false imprisonment, the defendant’s  persistence  in the course of the trial in regarding the plaintiff as a stock-thief aggravated the damage to the  plaintiff’ s reputation and he was entitled to recover accordingly.

Judgment for the plaintiff on claim  and for defendant on counterclaim.

ALOYS IGNAS V. SIMEO S/O MULOKOZI (1968)H.C.D. n.440.

FACTS

Defendants  had  tried  to  enter  a  room  near  one  occupied  by  their  father,  plaintiff’s tenant.  Plaintiff  asked  them  to  leave,  and  they  threw  him  down  and  beat  him. Plaintiff  was  only  slightly  injured.  Defendants  were  convicted  of assault,  the  Primary  Court  magistrate  fining  them  and,  noting  that  they  were  liable  for  damages  as  well,  directing  plaintiff  to  begin  civil  proceedings.  Plaintiff  did so,  losing  in  Primary  Court  on  the  grounds  that  it  was  necessary  to  prove  serious injury  or  material  loss.  The  District  Court  reversed,  awarding  damages  of  Shs. 100/-  on  his  claim  for  Shs.  600/-.

HELD

1)An  assault  victim  may  claim  at  least  nominal  damages  for  distress,  and  need  not  prove  material  loss  or  serious    personal  injury.  Citing  Clerk  & Lindsell  on  Torts,  12th  ed.,  par.  619.

(2)  The  Primary  Court  should  have  awarded compensation  of  Shs.  100/-  which  seems  a  reasonable  sum  on  the  facts,  in  the criminal  proceedings,  under  Primary  Courts  Criminal  Procedure  Code,  Paragraph 5;  had  it  done  so,  the  case  would  not  have  taken  two  years  to  be  settled,  as  ultimately  happened.

BOWMAKERS LTD  V. BARNET INSTRUMENTS LTD[1944]2allE.R.479.

FACTS

The Defendant hired some machine tools from the Claimant under a hire purchase agreement. The agreement did not comply with statutory requirements. The Defendant missed payments due under the agreement and the Claimant sought to recover the machines. The Defendant argued that the Claimant's illegality in failing to comply with the statutory requirements, barred their recovery.

HELD

The Claimant was successful. The Claimant did not plead the illegal agreement in making their claim. It was based on their ownership of the machine and therefore they did not need to rely on their illegality to found the claim.

SADRUDIN SHARIFF  V. TARLOCHAN SINGH S/O JWALA SINGH [1961]  1 EA 72

FACTS

The appellant had sued the respondent in the magistrate’s court for Shs. 450/- due on a promissory note. The respondent counter-claimed Shs. 1,285/20 for repairs to the appellant’s motor vehicle. At the hearing the respondent was asked whether he had a garage licence and although it had not been pleaded the appellant at the last minute raised the defence that, as the respondent had no township licence for a garage, the work had been done in pursuance of an illegal contract. The magistrate held that the contract was not illegal and gave judgment for the respondent. On appeal, the Supreme Courtadmitted further evidence from the respondent that he was at the material time in possession of a valid licence. It transpired, however, from that evidence that the contract was possibly unenforceable on the grounds that the respondent might have been a “defaulter” within s. 9 of the Registration of BusinessNames Ordinance, 1951. The Supreme Court dismissed the appeal holding that it had not been proved that the respondent was a “defaulter” and that even if he were one, it was just and equitable to grant relief. The appellant appealed again inter alia on the grounds that the Supreme Court was wrong in upholding the finding of the magistrate that the contract was not illegal, in allowing fresh evidence to be given during the appeal, and in not holding that the counterclaim was unenforceable under theRegistration of Business Names Ordinance, 1951.

HELD

(i) although under the Townships Ordinance the licensing authority has a limited power to refuse a license, the rules themselves are not so worded as to indicate any intention of prohibition contracts, but only of penalising those who carry on trades without a licence; therefore the submission that the contract, the subject matter of the counterclaim, was illegal, was rightly rejected.

(ii) as the question of illegality arose ex improviso in the magistrate’s court, it was completely within the discretion of the Supreme Court to admit fresh evidence on application and to have denied the application would have been to risk rank injustice to the respondent.

(iii) the Supreme Court had a very wide discretion to grant relief against the disability imposed by s.11 of the Registration of Business Names Ordinance; a mere procedural defect should not be permitted to affect the matter.

Appeal dismissed.

WALTERS  V.  SMITH AND SON LTD [1914]1 K.B. 595.

FACTS

The plaintiff alleged false imprisonment and malicious prosecution after a private guard had arrested him at the defendant’s store.

HELD

A private individual may justify his arrest of another on suspicion of having committed a felony only if he can show both that the offence was committed usually by a conviction for the same offence, and also that he had reasonable and probable cause for suspicion giving rise to the arrest.

Sir Rufus Isaacs CJ quoted from Hale’s Pleas of the Crown: ‘The third case is, there is a felony committed, but whether committed by B or not, non can't stand, and therefore we will suppose that in truth it were not committed by B but by someone else, yet A hath probable causes to suspect B to be a felon, and accordingly doth arrest him; this arrest is lawful and justifiable, and the reason is because if a person should be punished by an action of trespass or false imprisonment for an arrest of a man for felony under these circumstances, malefactors would escape to the common detriment of the people.

EDGAR BERNARD CLIFTON V. ARTHER JOHN HAWLEY[1966]  1 EA 4.

FACTS

The defendant bona fide purported to execute  a  duly  endorsed warrant of arrest for Edward Bernard Clifton by  apprehending the plaintiff and bringing  him  before a magistrate in Nairobi to answer charges laid under the East African Customs Management Act, 19 52 (referred to as “the Customs Act”). By  mischance the plaintiff  failed  to  observe that he was not named in the warrant and submitted to the arrest. On the plaintiff giving evidence of his name  before the  magistrate,  he  was immediately  released at the  ins tance of counsel representing the defendant’s  employer, though without express apology. Subsequently  the plaintiff  was  acquitted  of these particular charges and sued the defendant for damages for false imprisonment. The defendant conceded that technically arrest and imprisonment  had  occurred but contended that he was  protected by  the joint effect of s. 5 of the Customs Act and s. 30(1) and s. 31 of the Police Act (Cap. 84); that the error in  the  warrant  was  de minimis;  that having apparently  taken the opportunity  to see that the warrant applied to him  the doctrine  volenti  non fit injuria applied to the plaintiff: that the plaintiff was estopped from  denying his implied representation that the warrant referred to  him  and that the plaintiff was only  entitled  t o nominal general damages and such sum  by  way  of special damages  as  might  be  reasonable.  The plaintiff argued that consent was no defence in an  action for false imprisonment; that, in relation to estoppel, there was no duty  on the plaintiff to disclose err ors  in  the  warrant, that the defendant relied on no representation of the  plaintiff  and  that  the  defendant’s  position had not been altered; that nominal  damages could only  be awarded in exceptional circumstances and that no loss need be proved to support a n award of substantial general damages.

HELD

(i) the extension of the protection of the Police Act,  s. 31, to Customs officers only  applies to acts done  or  purporting to have been done under the  Police Act and here the defendant was acting under the Customs Act;

(ii) an arrest under an invalid warrant, as opposed to  an arrest like in this case of a person not named,  would  be  protected  by  the Police Act, s. 30(1), and further, where the liberty  of the subject  was  involved,  the  Police Act s. 30(1), would not be ext rule be applied to this misnomer;

(ii) to set up the defence of volenti non fit injuria,  which  could  be  raised in an action for false imprisonment,  the defendant had to show that the plaintiff’s express or implied assent was given with knowledge of the facts and this had not been done;

(iv) the  plaintiff’s  conduct  amounted  to  a representation that the warrant entitled the defendant to arrest and detain the plaintiff; the defendant  by  relying on that representation changed his position and the estoppel succeeded even though the plaintiff may  not have had full knowledge of the facts; Cairncross v. Larimer  (1860), 3 L.R. 130 applied.

(v) general and special damages considered  in the event of a successful appeal.

Action dismissed.

SOUTHWARK LONDON BOROUGH COUNCIL  V. WILLIAMS AND ANOTHER [1971] Ch 734.

FACTS

The defendants were in need of housing, both having been forced to leave their current lodgings. The defendants sought the assistance of a squatters’ association which helped them gain orderly entry into local authority owned houses. The houses in question belonged to a group of hundreds of houses that were left vacant by the local authority whilst awaiting development in order to provide housing for those on the authority’s housing list. At first instance an order for possession was made by the trial judge. The defendants appealed.

ISSUE

The Court of Appeal was required to decide whether the families were entitled to remain within the properties they were occupying either because (1) the local authority was in breach of its duty under the National Assistance Act 1948, s 21 and (2) whether the defence of necessity was available to the possession order.

HELD

(1) the local authority was in breach of its duty under section 21 of the 1948 Act. However, the Act contained specific remedies for beach, namely approaching the Minister with regards to enforcing the duty (s. 36). There was no private law remedy available to the defendants. (2) The defendants could not rely on the defence of necessity to their trespass of the properties. Even though authority existed supporting the view that in extreme circumstances the preservation of life allows encroachment onto private property (Mouse’s Case (1609) 12 Co Rep 63), the facts for the defendants did not amount to extreme circumstances and furthermore, even if they were, it could not be suggested that these circumstances were continuing to the extent that the defendants should be allowed to remain living in the properties indefinitely. The appeal was dismissed.

ZEBEDAYO NAFTALI  V. TELEZEA MAMLYA(1969) H.C.D.  n. 287

FACTS

The  plaintiff  had  leased  a  suite  of  rooms  from  the  defendant,  in  which  he  ran a  bar.  A  deposit  of  1000/-  was  held  by  a  third  party  (Robinson)  against damage  done  to  the  property  while  in  the  plaintiff’s  possession.  In  February, 1966  the  defendant  locked  the  bar  containing  certain  articles  belonging  to  the plaintiff.  The  plaintiff  instituted  proceedings  in  the  District  Court  for  Shs. 6335/-  damages,  being  partly  the  loss  of  profits  during  the  period  before  he opened  up  another  bar,  and  partly  being  the  value  of  the  property  converted by  the  defendant  to  her  use.  The  issues  before  the  District  Court  were whether  the  closure  of  the  suit  premises  by  the  defendant  was  illegal,  and  if so  to  what  extent  the  plaintiff  was  entitled  to  damages.  It  was  held  by  the  trial court  that  the  defendant  had  been  entitled  to  distrain  and  to  enter  and  close the  plaintiff’s  premises,  as  the  plaintiff  had  not  paid  rent  for  three  months. Secondly,  as  the  defendant  had  been  entitled  to  distrain  on  plaintiff’s  goods and  as  she  had  given  him  every  opportunity  of  taking  his  goods,  he  was  not entitled  to  claim  for  loss  of  earnings  nor  for  the  value  of  the  goods.  On  appeal to  the  High  Court,  it  was  argued  that  there  had  been  an  illegal  forfeiture  of  the lease,  as  well  as  distraint  of  goods;  and  that  the  deposit  could  have  been used  to  offset  the  arrears  in  rent,  instead  of  the  method  used.  

HELD

(1)“The  deposit  was  admittedly  paid  against  damage  to  the premises.  It  was  a  reasonable  stipulation  having  in  mind  that  the  premises were  to  be  used  as  a  bar  and  it  is  notorious  that  people  who  gather  at  bars are  likely  to  do  damage…..  The  deposit  money  concerned  a  matter  outside the  rent  and  was  not  available  to  be  set  off  against  the  rent  as  the  plaintiff hoped.” 

(2)  “As  far  as  non-payment  of  rent  is  concerned,  the  distraint  was lawful.  The  argument  on  the  first  ground  however  concerned  the  manner  in which  the  defendant  had  acted.  It  was  said  that  the  defendant  having  no  right of  entry  had  improperly  relied  on  forfeiture  of  the  lease,  with  the  result  that  the distress  levied  on  the  goods  was  void  abinitio.  It  was  further  argued  that  the learned  Magistrate  had  Come to  a  wrong  conclusion  on  the  facts”. 

(3)  “The  law  relating  to  the relationship  of  a  landlord  to  his  tenant  is  as  section  2(1)  of  the  Land  (Law  of Property  and  Conveyancing)  Ordinance  Cap  114  recites  the  law  in  force  in England  on  the  1st  day  of  January  1922,  subject  to  the  qualifications  in  subsections  (2)  and  (3)  of  the  section.  The  qualifications  in  section  2(2)  are  not,  I think,  relevant,  although  the  defendant  could  hardly  have  known  of  the technicalities  of  English  law  with  which  she  was  involving  herself.  At  any  rate, this  has  been  the  position  at  least  since  the  decision  in  KARIMJEE  JIVANJEE &  CO.  vs.  THE  OFFICIAL  RECEIVER  OF  THE  GOVERNMENT  OF TANGANYIKA.  THE  TRUSTEE  OF  THE  TRUSTEE  OF  THE  PROPERTY  OF GOLDON  McKIAHMID  (1936)  3  E.A.C.A.94 which  applied  the  common  law and  statutes  of  general  application  concerning  distress  to  Tanganyika  and presumed  knowledge  of  such  laws  to  the  parties.  The  position  is  still  the same.” 

(4)  “On  that  basis  I  turn  to  consider  the  argument  concerning forfeiture.  A  lease  may  be  determined  by  entry  or  ejectment  for  a  forfeiture  incurred  either  by  breach  of  a  condition  in  the  lease  or  breach  of  any covenant  if  the  lease  contained  a  condition  or  proviso  for  an  entry  for  a breach  of  such  covenant  in  the  instant  case  there  was  no  such  condition  or proviso  in  the  oral  agreement  between  the  parties  as  to  re-entry  for  nonpayment  of  rent.  I  agree  that  none  of  the  formal  rules  concerning  a  prior demand  were  complied  with,  as  pointed  out  by  learned  Counsel  for  the plaintiff.  But  where  forfeiture  has  been  incurred  for  breach  of  any  covenant  or condition,  the  lessor  must  do  some  act  evidencing  his  intention  to  enter  for the  forfeiture  and  determine  the  lease.  The  act  must  be  final  and  positive which  cannot  be  retracted,  treating  a  breach  of  covenant  by  the  lessee  as constituting  forfeiture.  (See  Woodfall  page  938).  Although  the  plaintiff’s servant  Roymond  indicated  that  the  defendant  had  said  that  she  no  longer wanted  the  premises  used  as  a  bar,  it  is  clear  from  all  the  circumstances  that the  defendant  wanted  her  rents  paid.  As  the  learned  Magistrate  appears  to have  accepted  her  statement  of  the  facts,  it  seems  that  he  defendant  offered to  open  the  premises  and  continue  if  the  rents  were  paid.  Ii  see  no  evidence in  the  defendant’s  account  of  what  happened  that  she  intended  to  enter  for the  forfeiture  and  determine  the  lease  ……  As  the  learned  Magistrate  held, she  was  interested  in  payment  of  rent  and  although  she  debarred  the  plaintiff from  access  to  the  premises  that  by  itself  would  not  necessarily  constitute  a determination.  A  similar  course  of  action  took  place  in  KANTI  NARAN  PATEL vs.  NOOR  ESSA  (1965)  E.A.  484 .  There  goods  were  locked  in  a  shop.  It  was taken  as  a  case  of  illegal  distress  forfeiture  not  being  considered  at  all.  I  am not  prepared  to  hold  therefore  that  the  defendant  did  finally  and  positively indicate  that  she  wished  to  determine  the  lease,  (Cf.  Eastern  Radio  Service  v. R.  J.  Pate;.(  1962)  E.A.  818. )” 

(5)  “There  is  then  the  question  of  distress. There  was  no  doubt  a  relationship  of  landlord  and  tenant  between  the defendant  and  the  plaintiff  respectively,  and  the  plaintiff  was  in  arrears  of  two months’  rent.  As  I  have  said  the  plaintiff  as  tenant  could  not  set  off  a  sum  due to  him  arising  out  of  the  deposit  and  certainly  not  so  as  to  affect  the defendant's  right  of  distress.  (See  Woodfall  page  374  Para  901).  The  bar being  open  at  the  time  the  defendant  was  entitled  to  enter  and  levy  distress, the  rent  being  due  from  those  premises.  I  cannot  see  that  the  articles  taken  in distress  were  privileged  …..  The  plaintiff  seems  quite  deliberately  to  have  left his  goods  in  the  premises  and  at  no  time  wished  to  retrieve  them.  I  cannot see,  therefore,  that  he  had  any  ground  of  complaint  as  to  the  manner  in  which distress  was  taken  or  impounded.  But  there  were  irregularities  thereafter. It  is  true  that  the  defendant  did  not  cause  an  inventory  to  be  made  out  of  the goods  taken  in  distress  nor  did  she  serve  a  notice  of  distress  so  that  the plaintiff  could  replevy  the  goods.  The  defendant  ought  to  have  had  the  goods appraised,  and  within  a  reasonable  time  removed  them  from  the  premises. She  took  no  such  action  according  to  the  plaintiff,  within  the  21  days  which elapsed  before  the  plaintiff  had  taken  up  other  premises  and  relinquished  the suit  premises.  On  the  other  hand,  according  to  the  defendant,  he  took  up other  premises  on  the  10th  February  1966,  that  is  two  days  after  she  had locked  the  premise.  Moreover,  the  plaintiff  never  wanted  the  goods  at  any time.  If  that  was  so,  then  the  defendant  could  not  be  accused  of  trespass  by remaining  for  an  unreasonable  time  on  the  premises  in  possession  of  the goods.  The  learned  Magistrate  made  no  comment,  as  far  as  I  can  see,  as  to whether  he  thought  the  plaintiff  had  taken  up  new  premises  and  had relinquished  the  lease  and  its  goods  with  the  defendant  within  two  days  or within  21  days.  The  evidence  was  equally  divided  and  I  presume  that  the burden  of  proof  being  upon  the  plaintiff  to  prove  his  case  for  damages,  he would  have  failed  to  discharge  that  burden  of  proof.  Moreover,  generally speaking  the  learned  Magistrate  favoured  the  evidence  of  the  defendant.  I  am left  in  doubt  therefore  whether  the  plaintiff  had  established  a  case  of  trespass, in  that  the  defendant  remained  in  possession  of  the  goods  without  proceeding to  sale.  (Woodfall  page  375  Para  903)”. 

(6)  “It  was  argued  however  that  the defendant  was  liable  for  goods  lost  while  in  her  possession.  On  this  point,  the learned  Magistrate  was  satisfied  with  the  defendant’s  evidence  that  when  the inventory  was  eventually  take,  the  goods  then  in  the  premises  were  all  the goods  that  had  remained  on  the  premises.  The  plaintiff  had  alleged  that  many more  goods  than  were  eventually  found  in  the  premise  had  been  distrained upon  by  the  defendant.  But  the  learned  Magistrate  did  not  believe  that.  His view  seems  reasonable  on  the  evidence.  There  was  no  evidence  then  of  any actual  loss,  and  as  I  have  said  when  sold  by  the  Court  Broker,  the  value  of the  goods  was  only  one  third  of  the  rent  outstanding.  There  was  no  case  then for  excessive  distress  as  argued.”

 (7)  “It  seems  to  me  that  the  distress  levied in  this  case  was  lawful  in  origin,  but  that  after  it  was  made,  there  were irregularities.  A  distinction  must  be  made  between  an  illegal  distress  and  one which  is  wrongful  by  reason  of  some  irregularity  subsequent  to  the  levy.  So where  distress  is  made  for  rent  justly  due,  and  any  irregularity  or  unlawful  act is  afterwards  done  by  the  party  distraining,  the  distress  itself  shall  not  be  to the  right  deemed  unlawful,  nor  the  party  making  it  be  deemed  a  trespasser  ab initio,  but  the  party  aggrieved  may  recover  full  satisfaction  for  the  special damage  he  has  sustained  there  by  with  costs  and  no  more.  He  cannot  sue the  person  in  possession  of  the  goods  for  conversion.  (See  Woodfall  Para 1167).  In the instant  case,  the  action  was  brought  on  the  ground  of  illegal  distress and  therefore  the  action  fails  because  no  illegal  distress  was  proved. Damages  for  an  irregular  distress  are  a  different  cause  of  action,  to  that  for  an illegal  distress.  In  my  opinion  therefore  the  learned  Magistrate  came  to  the right  conclusion  on  the  facts  which  he  accepted  that  there  had  not  been  an illegal  distress.  Although  the  evidence  was  conflicting,  I  do  not  see  my  way  to interfering  with  his  view  of  the  weight  of  reliability  to  be attached  to  the evidence.  But  even  on  the  plaintiff’s  evidence,  it  is  not  at  all  clear  that  the plaintiff  suffered  any  special  damage  by  reason  of  the  irregular  or  unlawful acts  which  occurred  after  distress  was  lawfully  levied.” 

(8)  Appeal  dismissed with  cost. 

ARMSTRONG V. SHEPPARD SHORT LTD [1959] 2 QB 384.

FACTS

The defendant built a sewer on land belonging to the claimant, but before doing so consulted with the claimant and the claimant raised no objection to the building. However, at this stage the claimant was not aware that he had an interest in the land because his title deeds were held with his mortgage lender. The defendant used the sewer for seven months without objection, but then, through a letter from his solicitor, the claimant instructed the defendant to remove the sewer. The claimant acknowledged that the sewer caused him no damage, but also stated that he had not been consulted about the building by the defendant. At first instance the trial judge awarded damages of 20 shillings and refused an injunction.

ISSUE

The issues in this circumstance were the extent of the defendant’s rights granted over the claimant’s land and the availability of an injunction and the extent of the damages awarded.

HELD

On appeal, it was held that the claimant was not prevented from seeking an injunction on the basis that he had acquiesced to the building of the sewer because at that time he was not aware of his rights. However, the claimant, because he had misled the court and because of the minor nature of the complaint was not permitted an injunction. Despite this, the oral agreement to allow the building did not create an easement in favour of the defendant, merely a bare licence. In this respect, there could be no action for the building of the sewer because the claimant had agreed. However, once the solicitor’s letter was received, use of the sewer should have ceased because this revoked the licence. The result was that damages were payable for this use and the amount awarded at first instance was reasonable in the circumstances

WOOD V. LEAD BITTER(1845)13 M&W 838.

FACTS

Wood (“Plaintiff”)bought a ticket to attend horse races that were scheduled to take place on property owned by Lord Eglintoun (“Eglintoun”). With the ticket,Plaintiff would be permitted to enter Eglintoun’s property and stay there while the races took place. For reasons that are unknown, Eglintoun decided to remove Plaintiff from the property while one of the races were taking place. Lead bitter (“Defendant”), Eglintoun’s servant, forcibly removed Plaintiff from the property. Plaintiff brought suit against Defendant alleging assault and false imprisonment. Thereafter, the trial court instructed the jury that Eglintoun was authorized to remove Plaintiff from his property, regardless of Eglintoun’s reason. Also, the trial court instructed the jury that Eglintoun did not have a duty to reimburse Plaintiff with the money Plaintiff paid for the ticket.Plaintiff alleged that his ticket granted him an irrevocable license to remain on Eglintoun’s property while the races took place. The jury held for Defendant.

ISSUE

Whether a license to enter the land is revocable, unless there is a grant that permits a license holder to remove property from the land.

HELD

Yes, a license to enter the land is revocable, unless there is a grant that permits a license holder to remove property from the land.

BOWATER V. ROWLEY REGIS CORP[1944] KB 476; [1944] 1 All ER 465.

FACTS

The plaintiff was a carter employed to go around the streets and collect road sweepings. For this purpose, he was provided with a horse and a cart by his employer – a municipal corporation. The plaintiff was ordered by his foreman to take out a horse, for which it was known to both of them that it was unruly and had run away on two occasions when another employee was working with him. The carter protested, but he was told that this was an order of the borough surveyor and eventually agreed to take out the horse in question. A few weeks later, the horse ran away and the plaintiff was thrown from the cart and suffered personal injuries. The plaintiff brought an action against the municipal corporation for failure to provide him with a horse that was safe and suitable for the work he had to perform.

Issues

(1) Are the defendants guilty of negligence?

(2) If so, is there contributory negligence on behalf of the plaintiff?

(3) If negligence is found on behalf of the defendants, can they claim the defence of non volenti non fit injuria as the plaintiff had accepted this type of risk as part of his employment?

Held

The decision was in favour of the plaintiff.

(1) The defendants are guilty of negligence.

(2) There was not contributory negligence on behalf of the plaintiff.

(3) The defence of volenti non fit injuria  is not applicable to this case as it does not apply to occupations that are not inherently dangerous such as working in an explosive factory or as a horse breaker.

(4) To rely on the defence of volenti non fit injuria, the employer must show that the employee undertook that the risk ought to be on him and that he was a volunteer in the fullest sense.

MZEE SO SELEMANI V. R[1968]H.C.D.n.36 A

          [DONE]

DRITOO V. WEST NILE DISTRICT ADMINISTRATION [1968]  1 EA 428.

FACTS

The  plaintiff  sued  the defendant Administration for damages for wrongful imprisonment and assault. His  plaint  alleged that he had been wrongfully  arrested, detained and assaulted by  the defendant’s chief of police, Mr. Angila, and  other  policemen  in  the  employment of the defendant; but it contained no averment that these policemen were acting in the  course  of  their  employment  by  the  defendant. The  defendant’s  defence did not specifically  deny  the  facts alleged in the plaint, and merely  contained a general traverse. The court found that the plaintiff was arrested and detained without a warrant  by Mr. Angila and that the  arrest  and  detention had not been justified; but that the plaintiff’s claim  for assault had not been made out. The defendant took a preliminary  point  that the plaint raised no issue between the plaintiff and the defendant because of the lack of an averment that the policemen were acting  in  the  course of employment by  the defendant; and the defendant also argued that, in law, the policemen were not  servants  of  the  defendant at all. On this latter point the court asked the Attorney-General to appear as amicus curiae,  to  which both the parties objected on the ground that, if the  suit  failed  against the defendant on this point, the plaintiff would sue the Government and therefore the Attorney-General  was an interested party.

HELD

(i) the  plaint  disclosed a cause of action ( Yakobo v. Tanganyika Contractors The Commissioner of Transport v. Gohil  (2) applied);

(ii) (reluctantly) the words of general  traverse were a sufficient denial;

(iii) the court has a wide discretion to ask for  the  assistance of an amicus curiae if it considers that the interests of justice would be served;  and the Solicitor-General should be heard on the grounds that his arguments would assist the court to  come  t o a correct and just decision in a difficult matter;

(iv) sections 3 (5) and (6) of the Police Act, when read with s. 73 of the Local Administration Act,create the relationship of master and servant between the Administration police and theAdministration; and Mr. Angila was at all material times the servant of the defendantAdministration acting with the scope of his employment, so that liability was established(Stanbury’s case (3), Fisher’s case (4) and the Perpetual Trustee case (5) distinguished).

Judgment for the plaintiff for Shs. 14,000/- and costs.

SEKADDU V. SSEBADDUKA [1968] 1 EA 213.

FACTS

The respondent in 1952 caused the Mengo police to arrest the appellant on suspicion of stealing his property and the police thereupon detained the appellant. The appellant, after being released, sued the respondent in the Principal Court, Buganda, for damages for false imprisonment. The respondent in defence claimed that he was not responsible for the actions of the police, but made no attempt to justify the arrest. The Principal Court dismissed the claim, and the appellant then brought this appeal to the High Court, in November, 1965. In the High Court it was argued that the appeal should have gone to the Judicial Adviser, because the damages claimed by the appellant himself (but excluding the general damages claimed by his wife, who was also a party below) were less than Shs. 2,000/-; and a question also arose about the effect of the application to Buganda of the Magistrates’ Courts Act.

HELD

(i)the value of the subject matter of the suit for the purpose of the appeal exceeded Shs. 2,000/-;  

(ii)  the High Court had jurisdiction to hear the appeal; 

(iii)    if a person sets the law in motion and causes another to be detained by the police it is no defence that the police thereby become responsible for the continued detention;

(iv)    once the detention or imprisonment is established the onus shifts to the defendant to show that it was reasonably justifiable.

Appeal allowed. Judgment entered for the appellant with costs here and below.

BIRD  V. JONES [1845] 7 QB 742

FACTS

Bird, B, wished to cross a section of a public road which was closed off due to a boat race. Two policemen, D, prevented B from passing in the direction he wished to go, but was allowed to go in the only other diction in which he could pass. B refused to go in that direction and stood in the same place. B raised an action against D for false imprisonment.

ISSUE

B claimed that the exclusion from using a section of the public road which prohibited him from moving in one direction, despite all other directions remaining unobstructed, constituted false imprisonment.

HELD

Partial obstruction and disturbance does not constitute imprisonment. Coleridge J. stated at paragraph 744 of his judgement that:

“a prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be moveable or fixed: but a boundary it must have; and that boundary the party imprisoned must be prevented from passing; he must be prevented from leaving that place, within the ambit of which the party imprisoning would confine him, except by prison-breach.”

A prison must therefore have a boundary. As there was still one direction which B could take, he could not be said to have been imprisoned as he was not confined and prevented from passing or leaving that place. B was at liberty to move off in another direction and no restraint or actual force was used against him.

MBOYA V. KITAMBIA AND OTHERS (1969)H.C.D. n. 168

FACTS

This is an appeal from a decree of a District Court awarding damages against defendant for malicious prosecution. Plaintiffs sued after they had been charged with taking part in an unauthorized procession c/s c/s 40(1) and s. 43(1), Police Force Ordinance, Cap. 322.  The charge resulted from a letter written by defendant to the Police, in which plaintiffs were said to have participated, and during which abuse was  said to have been  shouted, either at defendant or the High Court of Tanzania. A Police  Sergeant investigated  the mater, during which he took  a statement from the  defendant including a list of six potential witnesses. The defendant also visited the Police Station upon two occasions in relation to the  investigation.  The sergeant took statements from the named witnesses, and was satisfied that a prima facie case had been raised.  The matter was reported to the Regional C.I.D. Officer, who made the decision to prosecute. Plaintiffs denied that they had drawn up a procession and gone through Moshi shouting abuse. It was their contention that defendant, harbouring a grievance over previous  business dealings with plaintiffs, had brought about  the criminal prosecution for the purpose of revenge. The magistrate clearly  appreciated that there were four essential elements in an action for malicious prosecution a) that plaintiffs were prosecuted by the defendant; b) that  the criminal proceedings were terminated favourably to plaintiffs; c) that the prosecution  was brought without reasonable of probable cause; and d) that  it was maliciously motivated.

HELD

( 1) “The learned Magistrate held that  the appellant had in  reality brought an allegation to the notice of the police which he knew was false and which could not have, therefore, been based  on reasonable grounds. The learned Magistrate cited various authorities in  support of this proposition such as GLIMSK v. MOIVER (1962) 1 A E. R.  696, and MALZ v. ROSEN (1966) 1 A.E.R. 10 . I think there is no doubt that  if a person goes the Police with an account which he knows to be untrue, then not only has he no reasonable or possible ground but also that  that fact in itself  is strong evidence  of malice, necessary for a successful action for malicious  prosecution.”

(2) “On the question of malice, the magistrate was satisfied that  it arose out of his grievance which he wanted to revenge and therefore he trumped up a false charge against the respondents. On his view of the facts,  which as I say must be accepted as being quite reasonable on the evidence,  I find that the learned Magistrate could conclude that the appellant  had been  activated by malice in bringing a groundless  allegation against the respondents.”

(3) “I return  then to the beginning of the argument, namely whether it was the appellant who was the real prosecutor ….. For the appellant,  it was argued that  however much the appellant may have been at fault, one cannot go past the fact that the decision to prosecute was  that of the police. For  the respondents, it was argued that that was not so. I must consider in some detail the decision mainly relied on –  Gaya Prasad v. Bhagat Singh,  (1908) (Allahbad) 4 I. L. R. 30 & 32 All. That was  a decision of the Privy  Council. The decision appealed against was to the effect  that the person who had given false information to the Police did not prosecute the plaintiff. He merely gave the information to the Police, and the Police after investigation apparently thought fit to prosecute the plaintiff ….. Their Lordships made the following observations:- “If therefore a complainant  does not go beyond giving  what he believes to be correct information to the police, and the  police, without further interference on his part (except giving such honest assistance as they may require) think fit to prosecute, it would  be improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to  the knowledge of the complainant; if he misleads the police  by  bringing suborned witnesses to support it, if he influences the police to  assist  him in sending an innocent man for trial before the magistrate; it would be equally improper to allow him to escape liability because the prosecution has not technically been conducted by him. The question in all cases  of this kind must be – who was the Prosecutor? And the answer must  depend upon the whole circumstances of the case. The mere setting of the law  in motion is not the criterion; the conduct of the complainant  before and after making the charge must also be taken into consideration. Nor is it  enough to say, the prosecution was instituted and conducted by  the Police. That is again  a question of fact.” If the law is properly stated that  the mere setting of the law in motion is not the criterion but that  the conduct of the complainant  both before and after making the charge must also be taken into consideration, then the mere fact that ostensibly  the police brought the prosecution is not the final test …. If it is true that the appellant  brought a false allegation to  the police supported falsely by his employees and so influenced the police to bring a prosecution against innocent people, it cannot  be doubted that the responsibility for the prosecution was  that of  the appellant. On the facts found by the learned Magistrate, I thin he came to the right conclusion that  the appellant was responsible for bringing a malicious  prosecution.

The damages he awarded have not been challenged,  and appear reasonable  and therefore the judgment is confirmed, with the result  that the appeal is dismissed with costs.”

FESTO V. MWAKABANA(1971) H.C.D.  n. 417.

FACTS

The appellant unsuccessfully sued the respondent for malicious prosecution in the Mbeya District Court. The circumstance out of which these proceedings arose re as follows: there was a long standing dispute between the respondent and an appellant over the ownership of a piece of land. The appellant harvested maize growing on the land and the latter preferred a criminal complaint against the former. In the complaint he alleged that the appellant had stolen his maixe from his shamba. This shamba was the disputed area of land between the parties which was established as being the respondents. As a result of the complainant the Police arrested the appellant and charged him with the theft of the maize valued at Shs. 655/=. He was found guild and was sentenced to a fine of Shs. 400/= or months‟ imprisonment in default. He however appealed to the High Court and his conviction was quashed on the ground that the trial magistrate had misdirected himself in not considering the defence of claim of right put forward by him. 

HELD

(1) “[I]t cannot be disputed that so far as plaintiff was concerned he criminal proceedings had been requisite condition for bringing an action for malicious prosecution.”

(2) “It is now, I think settled law that in an action for malicious prosecution the plaintiff to succeed must establish first, that the defendant acted without reasonable and probable cause, secondly that the defendant acted maliciously and thirdly, that he has suffered some damage recognized by law. What is reasonable and probable cause is not an easy thing to define but I think it is now accepted that the definition prided by Hawkins J. in Hicks v. Faulkner (1978) 8 Q B D 167, 171, is the best guide we have in determining actions of this type.” “[The definition of] Hawkins J. has been repeatedly adopted and approved by the Court of Appeal and the House of Lords in England – vide(Lebo v. D. Buckman Ltd. and another (1952) 2 All ER 1057, Tmpest v. Snowden (1952) IKB 130, Herniman v. Smith (1938) A. C. 305 and Glinski v. Mc IVER (1962) A. C. 726.”

(3) “While I appreciate that decisions of English Courts re not binding upon this court I can find no good reason to reject a principle which is sound and in accord with reason and common sense simple  because  it  h appens  to  be  derived  from foreign  sources .  In  my opinion,  there  is  no  good  reason  for  not  accepting  the  sound  formula adopted  by  Hawkins  J.  and  I  will  accordingly  adopt  this  formula  as  a  guide in  the  determination  of  this case.” 

(4)  “Now,  it  is for  the  pla case  to  the  satisfaction  of  the  court,  that  the  defendant  in intiff  to  prove  his prosecution him had  no  reasonable  and  probable  cause  for  instituting  the  proceedings,  and he  can  only  do  so  on  the  production  of  evidence  which  when  examined would  show  the  wa nt  of  reasonable  and  probable  cause  by  the prosecutor/defendant.”  [His Lordship them  examined  the  facts  which  led  to the  respondent  prosecuting  the  appellant  and  held  that  there  was  ample evidence  leading  to  the  conclusion  that  the  appellant  had  harvested maize growing  on  the respondent‟s shamba.  He  continued: ]  “There  then  were  the facts  which  were  in  possession  of  the  defendant  when  he  preferred  a criminal  complaint  against  the  plaintiff  and  subsequently  proceeded  with his prosecution.  It  is upon  this stat e  of  the  evidence  that  we  have  to  decide whether  the  defendant  had  a  reasonable  and  probable  cause  for  the prosecution  of  the  plaintiff.  In  the  circumstances  in  which  the  defendant found  himself;  and  on  the  facts  ascertained  by  him,  I  have  no  doubt  in  my o wn  mind  that  the  facts  available  to  the  defendant  would  induce  a conviction  founded  on  quite  reasonable  grounds  of  the  existence  of  a  state of  circumstances  which  would  reasonably  lead  any  ordinarily  prudent  and cautions  man  placed  in  defendant‟s  position to  the  conclusion  that  the plaintiff  was  probably  guilty  of  the  crime  imputed.  It  may  perhaps  be argued  that  the  defendant  should  have  asked  for  an  explanation  from  the plaintiff.  Undoubtedly  his  in  some  case  is  a  good  thing  to  do  but  there  can be  no  gener al  rule  on  the  matter.”  Citing  Lord  Atkin  in (1938)  A.  C.  305  at  page  319); 

(5)  Appeal dismissed.

KAGANE AND OTHERS  V. ATTORNEY GENERAL AND ANOTHER  [1969]  1 EA 643.

FACTS

The plaintiffs, three serving police officers, were charged  with  conspiracy  to accuse falsely  of a crime and  with  conspiracy  to pervert the cause of justice.  All were acquitted, and they  thereafter brought this action against the Attorney-General and the p olice  officer who caused their prosecution, claiming damages for malicious prosecution and false arrest. The facts appear fully  in the judgment.

HELD

(i) whether there was reasonable and probable cause for the prosecution is primarily  to be judged on  the  objective  basis  of  whether the material known to the prosecutor would satisfy  a prudent and cautious man that the accused was probably  guilty  ( Hicks v . Faulkner  (1) adopted);

(ii) the fact that the prosecution was instituted on  the  advice  of State Counsel did not if itself constitute reasonable and probable cause.  The  material must be fairly  put to counsel and the prosecutor must still believe in his case;

(iii) once the objective test is satisfied, it may  be  necessary  to consider whether the prosecutor did not honestly  believe in the guilt of the accused; but  this subjective test should be applied only where  there is evidence directly  tending to show that the prosecutor did not believe in the truth of his case ( Glinski v. McIver  (3) adopted);

(iv) on  the facts, no reasonable person could honestly  have believed that the prosecution was at all likely  to succeed; and the second defendant was actuated by  malice.

Judgment for the plaintiffs.

ALI MUBIKI V. AMBALAL V BHAVSAR[1966] 1 EA 557.

FACTS

The defendant objected in point of law that the  plaint disclosed no cause of action  where  it  alleged that the defendant had wrongfully  removed chattels let by  the plaintiff on hire to tenants who  were  not parties to the suit. The plaint gave particulars of damage  for loss of rent and for the value of the articles removed to the detriment of the plaintiff’s reversion.

HELD

(i) on these facts possession lay  with the tenants and  trespass, detinue and trover could not  lie  at the instance of the plaintiff;

(ii) removal of the goods from  the  tenants  by  itself  was insufficient to constitute an action on the case, although such an action  would  lie  if  temporary  or permanent damage to the reversion was pleaded.

Preliminary  objection upheld. Plaint rejected.

NATIONAL AND GRINDLAYS BANK, LTD V.  DHARAMSHI VALLABHJI AND OTHERS [1966]  1 EA 186.

FACTS

The respondents sued for damages for  a  trespass  alleged to have been committed by  the appellant bank on October 6, 1960, in taking possession of and  removing the respondents’  stock-in-trade  over which the appellant bank had a letter of hypothecation as sec urity  for their overdraft. The letter of hypothecation was signed by  the respondents but was not  attested as required by  s. 15 of the Chattels Transfer Act. During the seizure two of the  respondents voluntarily  and with  knowledge  of  its contents signed a l etter referring to the letter of hypothecation authorising the seizure as the  overdraft could not be reduced. The trial proceeded on the  basis  that  only  the  issue of liability  was to be determined initially. The trial judge held that, although the letter o f hypothecation was wholly  void for  lack  of  attestation of the grantor’s signatures, nevertheless no trespass had been committed, because the respondents had by  their letter of October 6, given consent to the acts of the appellant bank in taking possession  of and removing  the  respondents’  stock-in-trade. On appeal, the Court of Appeal,  while  agreeing  that  the  letter  of  hypothecation was wholly  void, reversed his decision on the ground that no fresh consent, independent  of the letter of hypothecation, had  be en given on October 6, 1960. On appeal to the Privy  Council it was conceded that, if the letter  of  hypothecation  was  valid between  the  parties, the acts of the appellant  bank were justified under a clause in the letter of hypothecation and the only  issues in the appeal were  ( a as  between  the parties, and ( b ) whether the letter of hypothecation was valid ) if not, whether some  fresh consent, independent of the letter of hypothecation, was given by  the  respondents  on October 6, 1960. For the respondents it was contended that by  reason of the absence of attestation the letter of hypothecation was wholly  void under s. 15 of the Chattels Transfer Act and for the  appellant  it was contended that though the letter of hypothecation may  have been invalid for the purpos e of registration under the Chattels Transfer  Act, it was valid between the parties.

HELD

(i) that  the  letter  of  October  6,  1960,  did  not  seek to create a new right but merely  to confirm  a position which created rights under the letter of hypothecation;

(ii)  In the absence of any  express provision in s.  15 of the Chattels Transfer Act as to the consequence  of non-attestation of an instrument, the natural implication from  the provisions of s.  15 and its context and the scheme of the Act was that an unatte sted instrument is valid between parties but incapable of registration and  ineffective  against other persons; accordingly the respondents were bound by  the letter of hypothecation and the seizure was justified.

Appeal allowed.

HUMPHRIES AND FORST V. NKYA(1971) H.C.D.  n. 171.

FACTS

The  second  appellant  as  group  manager  of  a  firm employing the  respondent served  a  notice  of  dismissal  on  him  in  the  presence  of  the  first appellant.  After  serving  the  notice,  the  second  appellant  told  the respondent  to  return  motor  cycle  TAJ  520  which  was  registered  in  the  joint names  of  the  firm  and the  respondent  since  the  respondent  had  not  paid off  the  money  he  took  from  the firm for  its  purchase.  The  respondent  tried to  go  off  on  the  motor  cycle:  both  appellants  held  on  to  it  and  after  a  short while  the  motor  cycle  fell.  The  respondent  then  sued  t he  appellants  for  the damage  to  the  vehicle.  The  District  found  for  the  respondent  and  awarded Shs.  500/.  Appellants  appealed.

HELD

(1)  “The  first  question  is  whether  or  not  the  appellants committed  any  tort.  Their  action  in  trying  to  seize  the  motor  c ycle  was found  on  the  fact  that  the  respondent  and  their  principals  were  joint owners  and  respondent  still  owed  money.  There  was  no  evidence  of  the agreement  between  the  parties  to  show  that  the  firm  had  any  right  to  take possession  when  the  services  of  th e  respondent  were  determined ………….The  leaned  trial  magistrate  found  that  the  appellants  had  no authority  to  act  as  they  did  and  that  a  trespass  was  committed.  This decision  fully  supported  by  the  evidence.” 

(2)  “A  co damages  against  t he  other  coowner  to owner  can  recover  the the  extent of  his  interest  only ……..”the  respondent‟s  employer  had  money  for  him  in  excess owed  at  the  date  f  the  termination  of  his services of what  he .”  Therefore  for  practical purposes,  the  motor  cycle  belonged  to  the  respondent  alt hough  it  had  not been  transferred  to  him  absolutely.  Respondent  was  entitled  to  recover  full damages . 

(3)  There  was  no  evidence  how  Shs.  500/ arrived  at.  Damages  assessed  at  Shs.  250/-- . Damage  was . 

(4)  Appeal  as  to  quantum  of damages  allowed;  Appeal dismissed.

CHARLES DOUGLAS CULLEN  V. PARSRAM AND HANSRAJ [1962]  1 EA 159.

FACTS

In 1954 the respondents, who were saw millers, entered on the appellant’s  farm  and felled and removed seventy-six trees. The boundary  of the appellant’s  farm  had not  been  precisely  ascertained and  the  respondents  believed  they  were felling trees under the authority  of the Forest Department and in forest reserve. In December, 1954, the appellant  discovered  that thirty-four trees had been felled and  he accepted Shs. 1,000/- from  the respondents in  respect of these, believing that the respondents had only  fell ed and removed these trees. In February, 1955,  the appellant discovered  that  a  further forty-two trees had been felled and removed  by  the respondents. After some  correspondence the appellant was paid Shs. 871/81 in respect  of  twenty-four  of  the  forty-two  t rees; but not being satisfied with the amount received he wrote  to  the  respondents on March 19, 1958, threatening action for damages in respect of trespass and conversion unless  a sum  of about Shs. 13,000/- was paid.  By  letter to the respondents  dated  May 2, 1958, the appellant for the first time demanded the return of the trees themselves and as the demand was not met filed a suit in  detinue.  The  main  point  at  the  trial  was whether the appellant was entitled to the return of the trees or their value; the t rial judge found as a fact  that  at the time of the demand the respondents had ceased to be in possession of the trees “for a period of some  3 years” and held as a matter of law that in these  circumstances  the  appellant  could  not succeed in an action of  det inue. The appellant thereupon appealed  and challenged the findings of fact and law.

HELD

(CRAWSHAW, J.A., dissenting)

(i) an action in detinue is primarily  to recover possession of the specific article and was  based  on  a wrongful with holding of it.

(ii) where  the  original  possession  of  the defendant was lawful, whether by  reason of bailment, quasi-contract or statutory  right, and there is  a  continuing duty  on the part of the defendant to retain  the  article  and then to deliver it up to the person ent itled to demand it, it is no defence for the defendant to say  that he no longer has possession of the article,  unless  he  proves  that possession was lost without any  default on his part.

(ii) where the original possession by  the defendant  is  unlawful and the defendant has either destroyed the article or disposed of it, lack of possession  at  the  time  of  the  demand  is  a  good defence in an action in detinue, as the wrong consists not of wit hholding the article, but of a previous conversion.

(iv) the trial judge was correct in holding that the  appellant  could not recover in an action in detinue.

Appeal dismissed.

IN THE ESTATE OF SHAMJI VISRAM AND KURJI  KARSAN  V. SHANKERPRASAD MAGANLAL BHATT AND OTHER [1965]  1 EA 789 .

FACTS

demised. On appeal the defendants argued that the oral evidence was wrongly admitted to explain a patent ambiguity under s. 99 of the Evidence Act, 1963; that (a point not argued below) there had been an election by conduct as to the area demised, and that the wrong measurers for general and special damages had been used. The plaintiffs argued that the oral evidence was properly received under s. 102 ibid, as extrinsic evidence resolving an ambiguity as to the application of the lease in its context, and that the proper measure of special damages was the value of the stone at the stacking grounds less the cost of production.

HELD

(ii) where an issue, which should have been raised in the pleadings and canvassed before the trial judge, is raised for the first time on appeal, the court will not give leave to argue it unless it is satisfied that the evidence establishes beyond doubt that the facts, if fully investigated, would have supported the plea of the party seeking to raise the new issue;

(ii) the marginal notes to sections in Kenya Acts should be considered when interpreting the Act And in particular the court should have regard to the word “patent” in the marginal note to s. 99 of the Evidence Act, 1963;

(ii) where the words in a demise are clear in themselves and it is only by extrinsic evidence that the ambiguity is shown to exist, extrinsic evidence to resolve the ambiguity is admissible under s. 2ibid., and the oral evidence of the area leased was properly admitted;

(iv) the proper measure of special damages for trespass to property is the loss suffered by the plaintiffs and not the profit made by the defendant as a result of the trespass. In assessing the plaintiffs' loss, the particular facts of the case must be taken into account including what the plaintiffs would in fact had made of the land had the trespass not occurred.

(v) where there has been a breach of covenant to fence, the measure of damages is not normally the cost of the entire fence, it is usually the depreciated value of the land.

Damages reduced to Shs. 9,396/-, appeal otherwise dismissed.

ALI MUKIBI V. AMBALAL V BHAVSAR[1966] 1 EA 557.

FACTS

The defendant objected in point of law that the  plaint disclosed no cause of action  where  it  alleged that the defendant had wrongfully  removed chattels let by  the plaintiff on hire to tenants who  were  not parties to the suit. The plaint gave particulars of damage  for loss of rent and for the value of the articles removed to the detriment of the plaintiff’s reversion.

HELD

(i) on these facts possession lay  with the tenants and  trespass, detinue and trover could not  lie  at the instance of the plaintiff;

(ii) removal of the goods from  the  tenants  by  itself  was insufficient to constitute an action on the case, although such an action  would  lie  if  temporary  or permanent damage to the reversion was pleaded.

Preliminary  objection upheld. Plaint rejected.

PETER WANYOIKE GATHURE V. A BEVERLY [1965]  1 EA 514.

FACTS

The plaintiff, a squatter, sued the agent of the  registered owner of the suit premises in trespass for the destruction of 5 of his huts, crops and chattels  by  a bulldozer used to evict him  on October  27,  1962. He asserted that he and his ancestors had  been  on the land since time immemorial, that such possession  was  protected under the Crown Lands Ordinance, 1902, as amended from  time to time, that (by  amendment allowed at the trial) he had acquired a title to  the  suit  premises  by  prescription, that he had possession  in  fact sufficient to maintain trespass and that the force used was excessive. The defendant contended that the plaintiff arrived in 1956; that any  native rights that may  have existed  were  extinguished  in fact and in law in 1939 under s. 71 of the Trust Land Ordinance (Cap. 288);  that  it was not possible to acquire an adverse title by  prescription over land registered under the Registration  of  Titles  Ordinance;  that  time  would run afresh for the purposes of limitation each time there was a transfer or a transmission of the land or an interest in it  entitling  the  proprietor  to  be treated as if he had been issued with a certificate of title; that the last  such  event was an assent to bequest  to  the  defendant’s  wife in December 1957 when the plaintiff failed to bring his adverse interest, if any,  onto the title and that the force used, after notice, was reasonable in the circumstances.

HELD

(i) the plaintiff had not established that the suit premises formed any  part of any  land  occupied  by native tribes deemed to be excluded from  Crown Leases under s. 31 (1) of the  Crown  Lands Ordinance, 1902;

(ii) the plaintiff, on whom  the  onus  lay,  could  not  show by  the Governor’s written certificate that his or his family’s  rights to the land had been preserved under s.  71  (1)  (ii)  of  the  Trust  Land Ordinance (Cap. 288);

(iii) the case of Tayabali Adamji v. Abdul Hussein Adamji Alibhai  (1) was a binding  authority  for the proposition that it was possible to acquire an adverse title in the case of registered land;

(iv) for the purposes of limitation insufficient time had  run  in  the  plaintiff’s  favour  from  December 1957 when the last act of  the  parties  constituting  a  transfer within the meaning of s. 36(1) of the Registration of Titles Ordinance was registered;

(v) sufficient notice of the eviction had  been  given;  no more force was used than was reasonably necessary  and every  precaution had been taken to  avoid damage to the property  and possessions of those concerned: Hemmings v. Stoke Poges Golf Club, Ltd.

Suit dismissed.

ADEN PORT TRUSTEES V. AHMED SALEH EL-WAHA ISHI [1964]  1 EA 49.

FACTS

The  appellant owned a foreshore upon which for some  years the respondent had dumped scrap under licence from  the appellant. The appellant  terminated this licence on August 15, 1960 and on April 27, 1961 filed a suit for an injunction restraining the respondent from  continuing the trespass and “obstruction fees” by  way  of damages at the rate  of Shs. 115/- per week from  November  5,  1960  to the date of filing of suit and further damages at the same rate from  that date  until  removal  of  the  scrap. The plaint alleged a continuing cause of action so long as  the  trespass continued. The judge granted the injunction and awarded Shs. 40/- nominal damages. On appeal against the quantum  of damages,

HELD

(i) the appellant was seeking damages in respect of  causes of action which did  not  exist  when  the suit was filed and damages in respect of causes of action which might arise  after  judgment;  in the absence of legislative provision enabling damages to be given  in  respect of a cause of action arising after commencement of the suit, all that  can be recovered are damages to  compensate for  the injury  which resulted from  the cause of action, or causes of action, in respect of which the suit has been brought;

(ii) in any  event the damages sought were in the nature of special damages and they  should  have been so pleaded and strictly  proved.

Appeal dismissed.

SAIDI MOHAMED  GESHI V. HAMADI RASHID(1967) H.C.D.  n. 73

FACTS

Respondents destroyed a house built on their land by appellant. Their conviction of malicious property damage was quashed by the District Court, and the compensation order was set aside.  

HELD

“…….The respondents were at law entitled to eject Saidi who was trespassing on their own land in their presence, and ….. they were further entitled to remove any  object Saidi had  brought thereon during  the trespass.”  The complainant’s appeal was summarily rejected.

WANJUNJI S/O KARIOKI V. R[1961]  1 EA 495

FACTS

The appellant who had been employed on  a  farm  was  discharged and told not to visit the farm  without permission. The farm  manager also gave  instructions that if found on the farm  the appellant should be arrested. The night watchman of the farm  saw the appellant at about 2 a.m.  at  the  house  which  he  had , previously  occupied  on the farm  and in which his  father lived. He reported this to the headman who went with the watchman to arrest the appellant.  As the headman entered the house the  appellant  tried to escape drew  a  knife and cut the headman on the arm.  He then ran away  but was subsequently arrested. He was charged with trespass on a farm  contrary  to s. 3 of the Trespass  Ordinance  and  with assault with intent to resist arrest. He was acquitted of trespass and convicted  of assault with intent to resist arrest and sentenced to six months’ imprisonment.  From  this conviction and sentence he appealed. By  s. 6 (1) of  the  Trespass  Ordinance  any  person who is in a hut or enclosed premises on private land between 6 p.m .  and  6 a.m.  without the consent of the owner of the land is guilty  of an offence and may  be arrested by, inter alia , the  owner.  The  section contains no express power of delegation of the owner’s power of arrest but s. 2 defines “owner” as  including  the  occupier and person in charge of or having the  supervision  of  any  lands. The material issue at the hearing of the appeal was whether or not the attempted arrest  by  the headman and night watchman was lawful.

HELD

(i) a night watchman, headman or foreman entrusted with  the  care  and  supervision of any  part of a farm, and instructed to exercise supervisory  powers  to  prevent trespass, comes within the meaning of “owner” and can exercise an owner’s power of arrest.

(ii) the sentence was not excessive in the circumstances.

Appeal dismissed.

SARANJI V. ATTORNEY GENERAL [1970]  1 EA 347.

FACTS

A car dealer bought a car innocently  and for value  and subsequently  sold it to the plaintiff. The car had  been  stolen and had a forged registration card. The police took the car from  the plaintiff and returned it to its true owner without securing a  magist rate’s order to return stolen goods. The plaintiff sued the Attorney-General for damages for wrongful detention or conversion.

HELD

(i) the provisions of the Police Act, s. 36A, providing for a magistrate’s  order  for  the  return  of stolen goods are optional and not mandatory;

(ii) the  right  of a third person is normally  not a defence to an action for conversion, but acting under the authority  of the true owner is;

(iii) the police have implied authority  of the true  owner to take and return his stolen goods;

(iv) the seizure was not conversion.

Case dismissed.

NURDIN BANDALI V. LOMBANK TANGANYIKA LIMITED [1963]  1 EA 304.

FACTS

On May  17, 1960, the appellant  and  the  respondent  entered into a hire-purchase agreement in respect of a Mercedes-Benz truck. The price of the vehicle amounted to Shs. 60,308/- of which, on signing the agreement, the appellant made an initial payment of Sh s. 14,300/-. The balance  of  Shs.  46,008/was to be paid by  seventeen monthly  payments  each  of Shs. 2,556/- and one of Shs. 2,576/-, which included Shs. 20/- in respect of an option to  purchase. The agreement contained clauses relative to punctual payment of instalments, interest on overdue payments, the right of the hirer to terminate the hiring on notice and the right to exercise the option to purchase if all sums  due were paid and  all terms, conditions and obligations  observed. Clause 4 provided that,  if  the appellant should make any default in the due or punctual payment of any  instalment,  the  respondent should become  entitled to terminate the hiring, without prejudice to its claim  for arrears of and interest thereon,  and  in  such event, without previous notice or demand (and notwithstanding any  waiver of some  previous  default by  the appellant) the respondent should become  entitled to the immediate possession of the vehicle. Clause 7 provided that unless and until the whole of the sums  payable under the  agreement should have  been  paid  to the respondent, the vehicle remained the absolute property  of the respondent and by cl. 9 no forbearance, indulgence or relaxation shown  or granted to the appellant was in  any  way  to affect, diminish, restrict or prejudice the rights or powers of the respondent or  constitute  a  waiver  of any  breach of the agreement. Of the payments made  by  the appellant fourteen out of sixteen were late and  until  the  end  of 1960, when a payment was in arrear, the practice of the respondent wa s to send first a reminder drawing attention to  the  overdue  payment, and then a second reminder stating that, unless payment was made within seven days, the hiring would be terminated without further notice and the vehicle repossessed, and if there was  no response, to send a third letter stating the amount  due  and  terminating the hiring. In 1961  the respondent ceased to send the second reminder, but continued to send the first reminder and  the  letter  o f termination. The appellant on a number of occasions received the first letter and on three occasions  the termination letter, but in each case on payment of the arrears, the hiring was continued  and in no case was the vehicle repossessed. The seventeenth instalment fell due on October 17, 1961, and was not paid in time. The appellant was sent a reminder and on November 13 he received a telegram  saying  that  the  instalment  had  not  been received and that instructions had been given to repossess the vehicle. O n November 18,  1961,  the eighteenth  and  final instalment being a day  overdue, a termination letter was sent to the appellant which stated that the arrears outstanding were  Shs. 5,132/- which was the whole balance of the instalments including the Shs. 20/- payable on exercise of the option  to  purchase.  On  November  29, 1961, the vehicle was seized and  the  appellant’s  driver was informed that the vehicle would be released on payment of a sum  of Shs. 5,332/- which sum  included  repossession  charges.  On November 30 one H, the appellant’s  agent,  received  a  telegram  from  the appellant asking him  to pay the respondent a cheque for Shs. 2,500/- and  informing him  that he had also posted a cheque for the same amount. Hirji wrote a note on the telegram  inquiring from  the  respondent whether he could send a cheque for Shs. 2,500/- to which  the  respondent  replied in the affirmative, but when the cheque was sent it was refused and Hirji was informed that  the vehicle had been sold. On December 1 the appellant had, without the previous  knowledge of the respondent, transferred to the respondent’s account at Barclays  Bank the sum  of Shs. 5,300/- and a further sum  of Shs. 1,500/- on December  4. Subsequently  the appellant filed a suit alleging, inter alia , fraud, waiver and estoppel  and claiming both general and exemplary  damages. This  suit  was  dismissed. On appeal the substantial points taken for the appellant were that the respondent  was not entitled to repossess, on the grounds that a hire-purchase agreement was a contract of security  and  the  right  to possess was a penalty  against which the courts would grant relief, that the respondent had waived its right to repossess  as  by  its conduct time was no longer the  essence  of  the  contract, that the respondent could not unilaterally rein state time as the essence, that the respondent had by  its conduct  estopped  itself  from  asserting  its right  to repossess, that by  receiving and retaining amounts which exceeded the sum  demanded the respondent represented that the hiring still subsisted, that cl. 9 was contrary  to public policy  as  it  was contrary  to s. 115 of the Indian Evidence Act in  its  application  to estoppel and, as estoppel and waiver were closely  interconnected, it would be contrary  to  public  policy  to  allow cl. 9 to defeat an assertion of waiver.

FACTS

(i) the fact that all the instalments were paid by  the  hirer  did  not mean that the vehicle became his; until the property  passed by  reason  of the due  exercise of the option, the vehicle remained the property  of the owner who could, if  he  repossessed  it  in  acc agreement sell or otherwise deal with it.

(ii) the hirer under a hire-purchase agreement has no  interest in the article on hire other than that of a  bailee  and  the  owner  may  on  default of payment of the hire charges terminate the bailment without the hirer being able to claim  that there has been a forfeiture of any  interest additional to that of a bailee.

(iii) in view of cl. 9, it could not be said that because the respondent on a number of  occasions forbore to exercise its right to repossess and accepted late payment it induced in the appellant a belief that the right to repossess would not be exercised.

(iv) there was nothing in cl. 9 which was contrary to s. 115 of the Indian Evidence Act the submission that cl. 9 was invalid by reason of being contrary to the said section could not be sustained.

(v) the respondent had not by its course of action estopped itself from asserting its right to repossess.

(vi) had the amount of Shs. 5,332/- demanded by the agent when repossessing the vehicle been paid on November 29, 1961, the payment would have been treated as a payment made in accordance with the agreement and as that amount included all the instalments and the Shs. 20/- purchase price, the option would have been exercised and the ownership of the truck would have passed to the appellant.

(vii) as the appellant knew that the truck had been repossessed and sold before the payments of Shs.5,300/- and Shs. 1,500/- were made and received by the respondent, the court could not appreciate how the retention of these sums by the respondent could amount to a representation that the hiring was still subsisting; it was clear to both parties by December 1 at the latest not only that the hiring was no longer subsisting, but that it was not then possible to restore the hiring because the truck had been sold.

Appeal dismissed.

MASON  V. CLARKE (1955) AC 778

Facts

Clarke was a farmer who rented 450 acres of land in England. The land had a problem with rabbits.

Mason was a professional rabbit catcher. Orally, Mason and Clarke decided that Mason would pay £100 to be allowed to catch rabbits on Clarke’s farm for one year. Under the relevant English law, this agreement (for a profit a prendre) should have been made by way of a deed, however, Mason and Clarke only had an oral agreement.

For reasons that were not established at trial (although tax fraud was suspected), Mason wrote out the receipt for “bailiff’s wages” rather than mentioning the rabbit catching.

Mason laid traps for the rabbits and caught a few, but Clarke suddenly changed his mind and would not allow Mason access to his land.

Mason sued, stating that he had the right to catch rabbits on the property.

Clarke responded that the agreement was not valid, because it was not in writing, and it was tainted by fraud (accusing Mr Mason of trying to avoid paying tax).

ISSUE

Was the oral agreement between Mason and Clarke binding, notwithstanding the lack of written agreement and the possibility of fraud?

HELD

The Court held that there was insufficient evidence to prove that Mason was actually trying to commit fraud. Even if they had a suspicion, it had not been proven, and the agreement itself was not illegal.

Importantly, the Court also held that the laying of the traps constituted “part performance” which ensured that the contract should be enforceable.

The Court stated that the rabbit catcher had shown “sufficient possession” to cement his rights, and that the farmer could not take these back.

HARRISON  V. DUKE OF RUTLAND [1983]1Q.B.142.

FACTS

H used a public highway crossing the defendant’s land, to disrupt grouse-shooting upon the defendant’s land. He complained after he had been forcibly restrained by the defendant’s servants from doing so. The defendant justified his actions by saying that the plaintiff was a trespasser upon the highway.

HELD

Insofar as the plaintiff was upon a highway for purposes other than its use as a highway, he was a trespasser.

Lord Esher MR said: ‘on the ground that the plaintiff was on the highway, the soil of which belonged to the Duke of Rutland, not for the purpose of using it in order to pass and repass, or for any reasonable or usual mode of using the highway as a highway, I think he was a trespasser.’ and ‘Highways are, no doubt, dedicated prima facie for the purpose of passage; but things are done upon them by everybody which are recognised as being rightly done, and as constituting a reasonable and usual mode of using a highway as such. If a person on a highway does not transgress such reasonable and usual mode of using it, I do not think that he will be a trespasser.’

Lopes LJ said: ‘if a person uses the soil of the highway for any purpose other than that in respect of which the dedication was made and the easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and repass at their pleasure for the purpose of legitimate travel, and the use of the soil for any other purpose, whether lawful or unlawful, is an infringement of the rights of the owner of the soil.’

Kay LJ said: ‘the right of the public upon a highway is that of passing and repassing over land the soil of which may be owned by a private person. Using that soil for any other purpose lawful or unlawful is a trespass.’

 

 

 

KELSEN V. IMPERIAL TOBACCO [1957] 2 QB 334

FACTS

By an assignment in April 1946, the plaintiff acquired the lease of a shop and it tobacconist’s business. The premises were on a street with a ground floor room and a flat roof top. On the two front sides the shop was bounded by streets and on one side of the back was an adjoining building of three stories. During the lease, the defendants, wholesale tobacconists, displayed three advertising signs on the wall with the adjoining building about the shop. The signs made of sheet metal mounted on a frame which fixed against the wall but with the mounting, it extended by 4 inches into the airspace above the flat roof of the shop. In April 1948 the landlords gave to the owners of the adjoining building consent to a large new sign in place of the existing signs. In December 1948, the landlords granted a new lease of the shop to the plaintiff. By clause 1 of the lease, which contained the parcels, the premises devised to the plaintiff were expressed to be subject to ‘all that right so ds wants to any of the adjacent property, and by clause 2 the plaintiff covenanted not to permit any sign or advertisement to be posted on or over any part of the exterior at the shop and premises. In January 1950, no new sign having yet been affixed on the adjoining building, its owners again obtained the permission of the landlord of the plaintiffs shop for the defendants to substitute a new large advertising sign for the existing the smaller ones. A new sign was elected by the defendants in 1950 with the plaintiff’s knowledge. Its total length was about 20 feet, and the maximum distance by which part of the sign projected from the wall and over the building was 8 inches. From time to time the defendants servants had access to the sign, from the plaintiff’s shop and with his knowledge, to carry out maintenance work and repairs. In December 1953 as a result of a business dispute between the plaintiff and the defendants, the plaintiffs asked the defendants to remove the sign. After the dispute was settled, the plaintiff on being asked by the descendants whether he still wanted the side removed, replied that it could remain. Further arose between the parties, and the plaintiff gave notice to the defendant to remove the sign, and the defendants having failed to do so now brought an action against them for trespass.

HELD

McNair J granted a mandatory injunction ordering the defendants to remove a sign which projected only 8 ft over the plaintiff’s property.

(1) the airspace above the shop was part of the premises demised to the plaintiff on a true construction of the lease of December 1948 there was nothing to displace the prima facie conclusion that the demise of the premises included the airspace above the shop;

(2) when in January 1950, the landlords consented to the substitution of the new sign, they could not derogate from the demise of the airspace in December 1948 to the plaintiff;

(3) the plaintiff's conduct in allowing the sign to remain on the wall of the adjoining building from 1950 onwards did not stop him from subsequently requiring it to be removed, because a hard, as most, mary represented to the defendants but he would not object to the sign in future and representation of an intention did not give rise to an estoppel; and on the facts, the descendants had not been induced by the plaintiff's conduct to act to their prejudice to such an extent as to oblige them to continue to display the sign:

(4) The invasion of the plaintiff’s air-space by the sign amounted to trespass on the part of the defendants and not merely to a nuisance. On the facts of the case, although the injury to the plaintiffs legal rights was small, he was entitled to a mandatory injunction requiring the defendants to remove that sign.

ROBSON V. HALLETT[1967] 2 QB 939.

FACTS

A police sergeant and two constables went to a house where two defendants lived in order to enquire about some offences that had been committed. One of the constables knocked on the door and began to question one of the defendants. Shortly afterwards, the police sergeant came to the door and was allowed into the house by the defendant. The two constables were not allowed to enter and remained outside. When the father of the defendant saw the police sergeant he ordered him to leave. As the sergeant was leaving, the defendant jumped on his back and punched him. When the door opened, the constables outside saw what was happening and went to the assistance of the sergeant. A melee followed and a third defendant, the first’s brother, joined in. The three defendants were convicted of assaulting the police officers in the execution of their duty. Appeals and cross appeals were made on the basis that the police officers were trespassers and therefore not correctly executing their duty.

ISSUE

Although the judgment resulted criminal convictions, the issue that the court was required to deal with was whether the police officers had been granted a licence to enter the property and, if so, whether this licence was revoked.

HELD

(1) the occupier of a dwelling house gives an implied licence to any member of the public on lawful business to come through the gate and knock on the door.

(2) Police officers who lawfully enter premises and whose licence to do so is not revoked are acting in the exercise of their duty when coming to the assistance of another officer.

(3) Once a licence to be on a property is revoked, a person must be given a reasonable time to leave.

PERERA V. VANDIYAR[1953] 1 All ER 1109

FACTS

Perera was the tenant of two rooms in a house owned by Vandiyar, where he lived with his wife and two-year old child. Vandiyar cut off the gas and electricity supply to the rooms and prevented Perera from switching the supply back on. After two days of discomfort, Perera left the premises and returned five days later when the county court ordered the supply be restored. Perera was awarded damages for breach of contract and punitive damages on the basis that Vandiyar’s acts had amounted to a malicious tort. Vandiyar appealed.

ISSUES

Perera contended that cutting off the gas and electricity supply amounted to a tort of eviction, because his continued occupation of the premises became impossible without heating and lighting. He also argued that having the utility supplies cut off amounted to a breach of the landlord’s covenant to allow the tenant to enjoy quiet enjoyment of the premises. Vandiyar maintained he had cut the gas and electricity supplies because he had believed the tenant and his family were going on holiday. He denied his actions were designed to force the eviction of the tenant, and nor did they amount to a breach of covenant.

HELD

Cutting off the gas and electricity supply amounted to a breach of contract and Perera was, therefore, entitled to damages for breach of covenant. The landlord’s actions, however, did not amount to a tort because there had been no direct interference with the leasehold premises, and so there had been no direct trespass. Deliberate, severe breach of Vandiyar’s obligations as a landlord entitled Perera to damages for breach of contract, but there was no liability in tort.

CONWAY V. GEORGE WINPEY & CO LTD [1951] 2 KB 266

FACTS

Conway (C) was on his way to work on an aerodrome when he hailed a lorry belonging to the George Wimpey & Co Ltd (W) and driven by one of their employees (D). The lorry was crossing the aerodrome taking a number of the defendants’ servants to their work. D had been expressly told by W’s transport manager that he could only transport W’s men, and a notice to this effect had been affixed in his cab. Nevertheless, D gave C a lift for a short distance. When C dismounted the lorry, he caught his right leg under a wheel of the lorry and had to have it amputated after it was badly crushed. C raised an action against W for damages.

ISSUE

The issue in question was whether W as D’s employers could be held liable for the injury caused to C as a result of the lorry ride D provided for C against W’s instructions.

HELD

Both D, as a lorry driver, and C were equally responsible for the accident. C was effectively a trespasser when he mounted the lorry, and it was immaterial whether he knew he was one or not. D performed a wrongful act in allowing C, who was not an employee of W, to ride the lorry, and as this performance was not one which he was employed to perform at all, the act was outside the scope of his employment. W could therefore not be held liable for C’s injury as a result of C’s trespass. Trespass will arise where a person crosses the property of another on reliance of the permission of a person who has no authority to give that permission.

GREGORY V. PIPER [1829] 9 B & C 591

FACTS

Gregory (G) owned a pub called the Rising Sun with a stable-yard in the back which could be accessed by a back gate through Old King’s Yard. Piper (P) owned the property surrounding Old King’s Yard and disputed G’s right to pass through the yard to his stable. P employed a labourer (S) to lay down a quantity of rubbish, consisting of bricks, mortar, stones, and dirt, near G’s stable-yard, in order to obstruct the way. Part of this rubbish rolled against G’s wall and gates, and G refused to remove it. G raised an action of trespass against G.

ISSUE

The issue in question was whether a master could be liable for the trespass which occurred as a result of instructions the master gave to another in his employment. P claimed he could not be held liable because he had instructed S not to let the rubbish touch the wall, and the fact that the rubbish resulted in a trespass of G’s property was due to negligence on S’s part.

HELD

A master is liable in trespass for any act done by his servant in the course of executing his orders with ordinary care. P was therefore liable for trespass as it was probable and foreseeable result of the S‟s act which P had instructed S to do. The trespass was a necessary or natural consequence of the act ordered to be done by P, therefore making P as the employer liable.

SOUTHPORT CORPORATION V. ESSO PETROLEUM [1954] 3 WLR 200

FACTS

The defendant’s oil tanker ran aground in an estuary partly due to weather conditions and partly due to carrying a heavy load and a fault in the steering. The master discharged 400 tons of oil in order to free the tanker. The oil drifted onto the claimant’s land including a marine lake which it had to close until it had been cleaned at a substantial cost to the claimant. The claimant brought an action in negligence and nuisance. The trial judge found for the defendant and the claimant appealed.

HELD

Appeal allowed (Morris LJ dissenting) the defendant was liable in negligence and public nuisance.

Lord Denning on private nuisance:

“ In order to support an action on the case for a private nuisance, the defendant must have used his own land or some other land in such a way as injuriously to affect the enjoyment of the plaintiff's land. "The ground of responsibility", said Lord Wright inSedleigh-Denfield v. O'Callaghan, reported in 1940 Appeal Cases at page 903; "is the possession and control of the land from which the nuisance proceeds." Applying this principle, it is clear that the discharge of oil was not a private nuisance, because it did not involve the use by the defendants of any land, but only of a ship at sea.”