CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction

As social organization developed from a predominantly agricultural to a predominantly technological and urban system, as the relations of men became more and more intimate, the greater was the need, the need of Law. A basic force at work here is change which necessarily has its effects upon the law, habits, manners, modes of thought, the production of goodsand distribution of goods. The very sizes of the population are far different today than they were a century and half ago. As the society develops law too develop, along, in fact law is one of the greatest instrument for changes and developments1

These changes and developments brought about the tort of negligence as a separate and independent tort (Though it is of a recent origin) 2. It is necessary to emphasize that the law of tort, like those other branches of the law, is concerned with the question of liability; an action founded upon tort is an action between persons, either natural or artificial (i.e. corporation) and the outcome can only be that one of them, the defendant is or is not liable to do or refrain from doing something at the suit of the other. If there is no defendant whose liability can be established according to the principles of the law then the plaintiff is left without redress.

The tort of negligence, in its formative stages, was treated merely as a mode of committing other torts and not as an independent tort itself until 1825.

1. Gordon Post, (1945) An Introduction to Law, Sweet and Maxwell Londonp 1

2. Winfield and Jolowicz,(1989) Law of Tort, Sweet and Maxwell, London p 75

Consequent upon frequency of actions in which negligence was the substance of the action, the increase in mechanization and industrialization of society and the consequent multiplication of personal injury caused by negligence have all led to the idea of negligence as a separate tort itself and not simply as a mode of committing trespass or other torts.

Then came the view that liability for negligence can only exists if the case is covered by a duty which has already been recognized3. It was put most forcibly in Landon‟s case4 that “Negligence is not actionable unless the duty to be careful exists. And the duty to be careful only exists where the wisdom of our ancestors has decided that it shall exist”.Certainly, it is true that in denying the existence of a duty in some cases the judges have done so on the ostensible ground that no authority for such a duty exists, but recently, they have not hesitated to produce a new duty when it has seemed right to them to do so. That is why Lord Denning L.J. has said, “If we never do anything which has never been done before, we shallnever get anywhere.The law will stand still while the rest of the world goes on; and this will be bad for both”5.

The most important thing that has ever happened to the tort of negligence; is the decision in Donoghue v.Stevenson6, a manufacturer of a ginger beer sold to a retailer ginger beer in an opaque bottle. The retailer resold it to A, who treated a young woman of her acquaintance with its contents.

1. Ibid p.75.

2. In Landon‟s case (1941) 57 L.O.R 183.

3. Packer v. packer (1954) A.C 15 at 22

4. (1932) A.C 562

These included the decomposed remains of a snail which had found it way into the bottle at the factory. The young woman alleged that she became seriously ill in consequence and sued the manufacturer for negligence. The doctrine of privity of contract prevented her bringing a claim founded upon breach of a warranty in a contract of sale but a majority of the House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain noxious matter and that he would be liable in tort if that duty was broken.

Lord Atkin said;

The liability for negligence, whether you style it such or treat it as in other system as a species of „culpa‟ is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.The rule that you are to love your neighbor becomes, in law, you must not injure your neighbor; and the lawyer‟s question, who is my neighbor? receives a restricted reply;you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question7

Out of the above the “neighbor principle” evolved long after the first attempt to formulate a general principle was made by Brett M.R.8Lord Atkin test thus got rid of the law of contract fallacy of

1. Emphasis added.

2. In Heaven v. Pender (1883) 11 Q.B.D 503 at 509

privity of contract and provided authority for the proposition that notional duty is owed independent of contract by a manufacturer to the ultimate consumer of his product. This principle thus over throws the privity of contract fallacy that has inhibited the growth of the law. In this connection and in addition, it is certain that Lord Atkin‟s statement of principle (neighbourhood principle) has been largely responsible for the radical development of the tort of negligence since 1932.

Similarly, what the decision in Donoghue did to the tort of negligence generally has become more effective, followed and adopted in Hedley Byrne vHeller Partner9particularly negligent misstatement by Bankers. Before Hedley Byrne there was no remedy for non fraudulent misstatement on the basis that there were no common law duty for care and no contract. The plaintiff could not succeed in negligent misstatement that was the decision in Derry v. Peek10. It was not until Hedley Byrne that the trend redressing this view began. The House of Lords held that the only reasonwhy liability could not attach was because the defendant made reference without responsibility, without which they would have been liable for negligence for the misstatement.

Nigerian Courts have followed and adopted all the leading authorities in the development of the tort of negligence in Nigeria. The Courts have referred to and relied on those English authorities egDonoghue v.

1. Hedley Byrne V. Hel,ler and Partner (1964) A.C 465

2. (1899) 14 AC 337

Stevenson11and Hedley Byrne v. Heller and Partners12, in deciding matters that are brought before them. Thus rarely one finds in decided cases the absence of at least one “inspirational” English decision. And to compound the problem, they are applied without any modification to suit our local exigencies. Nigerian courts and Judges are slow to expand the tort of negligence to new areas or field beyond what the Englishcourts have done.

1.2 STATEMENT OF THE RESEARCH PROBLEM

Negligence is the product of lack of exercise of care or diligence in the performance of certain things. This research has examine the problems of liability and the challenges associated with the establishment of the liability of the defendant, whether professional (skill) or a manufacturer (product liability). It also consider the question of duty of care and the breach of it without which there cannot be liability or the tort of negligence i.e when is a duty said to be imposed on the defendant; when is the defendant said to be negligent and what are consequences of his negligent acts or omissions?

1.3 AIM AND OBJECTIVES OF THE RESEARCH

This research has examined the development of the tort of negligence in Nigeria within the general frame work of Negligence as a tortuous liability and its applicability to our industries and society. It identify the various methods or theories of establishing liability which hinges on duty of care and breach of it (The very pivot on which the tort of negligence revolves). The research also examines the defences that are opened to the defendant and the applicability or otherwise of the imported English common law in Nigeria.

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1. supra

2. Supra

1.4 JUSTIFICATION OF THE RESEARCH

The main thrust of this research as stated in paragraphs1.2 and 1.3 above is to identify problems associated with the establishment of negligent liability and proffer solutions that will help shape the already existing and recognized categories and establishment of negligent liability. It is hoped that the recommendation if recognized will be of a considerable advantage to the Nigerian policy makers for the advancement of trade, industries and society at large. And this work will generally assist any researcher wishing to make further research in this field of study.

1.5 SCOPE OF THE RESEARCH

This research covers the origin and development of the tort of negligence in Nigeria, before independence, after independence and how the advancement in trade, industries and society have accelerated the development of negligence in Nigeria.

1.6 RESEARCH METHODOLOGY

The research adopted a combination of doctrinal and empirical result methods. Doctrinal based on decisions arising out of case law (which is the core of this research) and the various views by erudite jurists, as well as expression of relevant opinions and

analysis of issues, by scholars in text books, journals, magazines and newspapers are relevant. And empirical result based on focus group discussion carried out within the academic environment.

1.7 LITERATURE REVIEW

There are literature on Torts and negligence generally, both foreign and local Authors, but no particular one centered on this topic. The focal point on this research is particularly on negligence, its origin and development in Nigeria. However, the following notable Authors and thesis are relevant to this work as follows:

Gandhi13, this book is relevant in the sense that it deals with the fast – developing law of tort in general. It explains philosophical and social background, leading Indian decisions and other Common wealth jurisdiction where the Nigerian lawemanated from. This writer will use the social and philosophical background in this book to examine how religion and lack of education have affected negatively the development of the Tort of Negligence in Nigeria.

Kodilinye14the book is very relevant because, its focal point is Nigeria. It discussed and explained how the wider field of torts affects a citizen from all sides; his physical safety, his property domestic affairs, his reputation, privacy and his liberty. The Author dwells mainly on leading Nigerian cases on the subject matter as at the time. However, a lot newer leading Nigerian cases have come up since then e.g the rigid position of the Court of Appeal in Kalu Anya v. Imo Concord Hotel has now been watered down in Harka Air Services Nig Ltd v. Emeka Keazor15.