Since the day when, in my first year of teaching, I found myself trying to explain the feudal origins of trover to a puzzled class of Sudanese students, I have had occasional flickers of doubt whether the English law of torts has been one of Britain's most appropriate colonial legacies. One journey down the Lagos-Ibadan road should suffice to raise questions about the suitability of the common-law action for negligence as an instrument for compensating for or reducing road accidents in Nigeria; while the amount of damages awarded in some East African personal injuries actions, like the Mercedes Benz, contrasts sharply with the general living standards of the vast majority of the local population. Nevertheless the distinction between libel and slander, and between aggravated and punitive damages, and even some survivals from the Year Books have found their way into the law reports and treatises of some African jurisdictions. The elegant generalities of civilian doctrines of extra-contractual obligation seem, not surprisingly, to have made the transition to warmer climates more smoothly.

(I) Si les États de l’ex-Afrique française ont fait preuve depuis leur indépendance d’une intense activité législative dans le domaine du statut personnel, ils ont été beaucoup plus réservés en ce qui concerne le droit des obligations et singulièrement celui de la responsabilité civile extra-contractuelle. À notre connaissance, en effet, seuls deux pays ont jusqu’ici pris l’initiative d’élaborer en cette matière une législation nouvelle. Il s’agit de Madagascar, d’une part, du Sénégal, d’autre part, qui, à peu près à la même époque, ont promulgué un Code des obligations.

Academic disputation continues as to whether Nigerian courts are bound to apply English decisions subsequent to 1900. From a practical point of view, however, such decisions are treated as authorities which ought to be followed unless there is strong reason to the contrary. In the area of tort, only when the question of damages has arisen have judges in Nigeria shown conspicuous signs of independence. For practical purposes, therefore, one may treat the Nigerian law of tort as being identical with that of England except where the latter has been modified by statute. The tort of negligence has, of course, been little affected by legislation in England. The most important legislative change, relating to apportionment of damages in contributory negligence cases, has been adopted in all parts of Nigeria. In the Northern States, however, the doctrine of common employment is still in force, and only Lagos has legislation based on the Occupiers' Liability Act, 1957.

Civil liability can be defined as “the obligation attaching to an individual or his group to make good damage caused to another by himself, by persons related to him, or by animals or things of which he has the ownership or custody”. In the first place liability is objective, for which the only requisite is to prove the harm suffered by the victim. Fault, or rather the mental state of the person liable, does not enter into the matter except at the stage when it becomes necessary to determine the measure of damages: damages will vary in accordance with the degree of “wrongful intent” of the defendant. While it does not take fault into consideration, customary law, on the contrary, considerably extends the notion of actionable damage: harm of any kind whatever can give rise to a right to compensation. In the result, there is no question of the chain of causation between the damage suffered and its author; the only question is to decide who shall pay the compensation payable in respect of such damage.

The purpose of this article is to review the application of the English law of defamation in the East African countries (Uganda, Kenya, Tanzania) and to assess the possible contribution of the Kenya Defamation Act, 1970.

The case of Oguche v. Iliyasu & Ors. raises several interesting issues in the law of the Northern States of Nigeria, in particular the definitions of “native” and “non-native” and the powers of the Commissioner under the Land Tenure Law, the relationship between title to land and the rules governing trespass to land, the protection afforded by the Public Officers (Protection) Law and the award of exemplary damages for oppressive acts by public officers. The facts of the case will be given first, followed by a summary of the judgment and comment on the issues raised.