*LAW OF TORT SECOND SEMESTER NOTE

August 31st 2023

*TORT OF DECEIT*

Deceit is an economic tort. It is a tort that is related to business transactions.

Deceit is the tort of recklessly or knowingly making a false statement to another with the intent that it
shall be acted upon by the receiver or by the recipient who does act upon it and thereby suffers some
damage or loss. Deceit is not actionable per se.

The false statement may be made orally or in writing or by conduct.

In criminal law, deceit is known as obtaining by false pretense.

In contract, it is known as fraudulent misrepresentation.

According to Prof. Salmon, deceit consist in the making of a willfully false statement with the intent that
the plaintiff shall act in reliance on it and with the result that he does so act and suffers danger in
consequence.

*ELEMENTS OF DECEIT*

In order to prove or to succeed in an action for deceit, the plaintiff must prove the following elements;

1. A representation must have been made either by word or by conduct or in writing

2. The representation was made with knowledge that it is false or without any genuine belief in its truth

3. The representation was made with the intention that it should be acted upon by the plaintiff or by a
class of person's which included the plaintiff

4. The plaintiff relied or acted upon the representation

*THE MAKING OF A FALSE STATEMENT OF FACT*

In deceit, the plaintiff must prove that the defendant made a false statement to him. Such statements
being expressly made orally or in writing or implied by the conduct. Any kind of conduct thy can mislead
the plaintiff is sufficient.

Deliberate concealment of fact also amounts to deceit in circumstances where disclosure is expected.

See- *JAMES V MID MOTORS (1978)*

Mere silence or none disclusre on its own is not actionable deceit. Because silence does not constitute
fraud and this is generally expressed by the Latin maxim "cavert emptor" meaning "buyers beware",
because it is expected that any reasonable party to a contract will make his independent findings about
the state of the property or product he is negotiating to buy.

However, there are instances when silence can constituent deceit.

1. Where it distorts a positive representation (cases of half truth)

Where a person proceeds to give information on a particular issue, he is under a duty to make full
disclosure about that issue.

Where partial disclosure is made, the part which has remained unsaid renders that which was said
untrue.

See - *DIMMOCK V HALLETT*

A man wanted selling his property which was in a good location. He told the buyer that tenants had
already occupied the property and the latter was induced to buy. But the seller did not disclose that
some tenants were about to park out. The defendant was held liable for DECEIT.
See also - *LEE V LEE*, the issue between couple where the man was to give wife a fixed monthly
income, half of his salary. The salary was 80k pounds. When the man later sent 30k disclosing that it's
half of his salary. Upon his wife discovering that his salary was 80k pounds and half was 40k, she sued.
Held: there was deceit.

2. Where the representation though true at the time it was made, subsequently becomes false to the
represents knowledge, and the representor deliberately refuses to inform the representee of the
subsequent change, then such silence would amount to deceit.

See - *WITH V O'FLANAGAN (1936) 1 ALL ER @727*

3. Another instance is where there is a statutory duty to disclose certain facts, failure to disclose those
facts amounts deceit.

4. Statement of intention or opinion. One must give his true opinion without withholding anything
especially where the person is an expert.

7th September 2023

*LAW OF TORT NOTE*

*KNOWLEDGE OF THE FALSITY OF THE STATEMENT*

For an action of deceit to succeed, the plaintiff must prove that the defendant knew that the statement
he made was false. A mere false statement is not actionable in deceit except it is willfully made.

See - *DERRY V PEEK*

*INTENTION THAT THE STATEMENT SHOULD BE RELIED UPON*

An untrue statement is not actionable no matter the damage it may have caused upon reliance on it,
unless it was made with the intention that the plaintiff must rely on it in the manner in which he acted.

It is important in the tort of deceit to prove that the defendant planned that the plaintiff should act on
his statement or representation.
A person who tells lies is not responsible to the whole world for the consequences of his false
statement.

The only person entitled to rely on such statement and to act accordingly is the one to whom it was
represented and expected to act upon it by the representee.

All others take and act upon the statement at their own risk and if they suffer harm or loss, they have
themselves to blame.

It is not expected that the representation should have been made to the plaintiff or representee directly.

It is sufficient if it is made to a third party with the intent on the part of the representor that it should be
passed unto the plaintiff.

In *LANGRIDGE V LEVY*, the seller of a defective gun which he had false and knowingly warranted to be
sound was held liable by the claimant who was injured by the bursting of the gun. Although it was the
claimants father who bought the gun, he had informed the seller that he was buying it for the son.

Secondly, If the misrepresention is addressed to a class of persons of the plaintiff is a member, then the
defendant will also be liable.

In *COMMERCIAL BANKING CO. LTD V BROWN* a bank issued a false credit report on a wool buyer to
another bank which forwarded same to a wool grower who relied on it to his detriment. The issuing
bank was held liable since the report was intended for the class of wool growers of which the plaintiff
was a member.

However, if the representation is made to a limited class of persons, no one outside that class can sue
upon it.

In *PEEK V GURNEY*, it was held that the prospectus of the company was meant for original share
holders only and they were the only persons that could sue on it. Therefore, those who bought their
shares from the original share holders, had no right to sue on it.

*THE CLAIMANT MUST RELY ON THE STATEMENT*

Where the misrepresention is made to a machine acting on behalf of the plaintiff rather than to an
individual, and it is proved that the machine was programmed or set up to process certain information
in a particular way in which it would not process the information about the particular transaction if the
correct information was given, then the one who programmed the machine will still be liable.

See - *RENAULT UK LTD V FLEET PRO TECHNICAL SERVICES LTD. (2007) QB*

Where the loss or damage suffered by the plaintiff can be attributed to other causes apart from reliance
on the defendants misstatements, then the defendant will not be liable in deceit.

It is not a legal requirement to prove that the misstatement was the sole inducement of the plaintiffs
act. It is enough if the false statement was actively present in the mind of the plaintiff when he acted.

In *EDGINGTON V FITZMAURICE*, the plaintiff was induced to take debentures in a company partly by
the misrepresention in the prospectus and partly due to his own mistaken belief that the debenture
holders were entitled to take a charge in the companies property. It was held that the plaintiff had been
materially misled and that the misstatement was actionable.

Also, in *SMITH V BLACK PANTHER*, a prospectus published by the defendant contained the untrue
statement that one Mr. G was a director of the company and the plaintiff subsequently bought shares in
the company. It was held that the misstatement was not actionable and the plaintiff even admitted in
evidence that he had never heard of G before and that he was nowhere influenced by the statement in
the prospectus.

It is also important to note that the loss suffered by the plaintiff should be attributed to the deceitful
representation.

If the loss suffered cannot be attributed to the deceitful information, than the represetor cannot be
liable.
Where the representation made to plaintiff was false, and the plaintiff still acted on it knowing it to be
false, then there is no deceit. The defendant must prove that the plaintiff has sufficient and complete
knowledge of the facts, but still acted on it in order to absolve himself from any liability whatsoever.

See - *SULE V AROMIRE (1915)*

*DAMAGE*

Deceit is not actionable per se. There must be proof of damage or loss suffered by the plaintiff.

No action will lie for a false statement unless the plaintiff did rely and act upon it and suffered harm in
consequence.

A mere effort made to deceive another is not actionable. It is sufficient however that the false statement
was among the factors that prompted the plaintiff to act the way he did.

It is important that the plaintiff should prove damage. This damage does not necessarily need to have
been suffered at the time the plaintiff acted on the statement. The damage may come sometime after.

See - *DIAMOND V BANK OF LONDON & MONTREAL LTD. (1979) QB PT 333*

Damage may be in form of financial losses. It may be personal loss as well loss to property.

Finally, in the tort of deceit, the test of remoteness of damage, lies in the direction of the damage and
not in reasonable foresight.

Thursday 14 September 2023

*Law of Tort*

14/9/2023

*PASSING OFF*
Passing off in (tort) is the act of falsely representing one's product as that of another, usually in an
attempt to deceive potential customers or to gain the goodwill that the other person has established.

Where a person sells his goods or carries on his business under a name, trademark, description or
otherwise does anything to mislead the public into believing that the business/goods are those of
another person or organization and thereby takes advantage of that person's reputation he/she will be
liable for passing off.

See _Niger Chemist V Nigeria Chemist LTD._

Hence, passing off is a common law remedy aimed at protecting trades against unfair competition

*ELEMENTS OF PASSING OFF*

*Lord Diplock in Erwenwarnaik and J. Townsen and sons 1979 APPEAL CASES AT 371*

Highlighted the elements of passing off to wit:

*1* . There must be a Misrepresentation

*2* . The misrepresentation must be made by a trader in the course of his trade/business.

*3* . He is making the misrepresentation to prospective customers of his or to ultimate customers of

*4* . The misrepresentation is calculated to injure or to affect the business or goodwill of another
trader

*5* . The misrepresentation causes damage or threatens to cause damage to the business or goodwill
of the trader, by whom the action is brought.

it is inferable from the foregoing that passing off is actionable _per se_ , and does not require actual
damage or any proof of damage to succeed.

Mere apprehension of possibility of damage is enough to maintain an action.

*1* . Trading with a name that resembles that of the plaintiff/claimant:

The use of a name is legally qualified by the law of passing off and Company Law.

Hence, where the defendant engages in the same type of business as the plaintiff and uses the plaintiff's
name or a name closely resembling the plaintiff's name, as a result of which the public or potential
customers maybe confused and misled into thinking that they are one and the same business, an
injunction restraining the defendant from using the name maybe granted.

In *Hendricks & Montagu,* the plaintiff carried out insurance business under the name "Universal Life
assurance society",and they successfully got an injunction to restrain the defendant which was another
insurance company from carrying out a business under the name "University life assurance society"

According to *James LJ* he posited;

" Now there is such a similarity between those names that one is in the ordinary cause of human affairs
likely to be compounded with the other are persons who have heard of the universal life society likely to
be misled into going to the Universe,

I should think very likely indeed".

Many people do not care to Know the exact letters of what they have heard.

In *Niger Chemist & Nigeria Chemist LTD* , the plaintiff chemist succeeded in an action against the
defendant from carryout business under similar names.

Howbeit, both business are run in Onitsha.

The court held that the use of the word "Niger Chemist" was calculated to deceive people who have
been dealing with the former chemist.

In *Ogunlede & Babayemi 1971 1UNIVERSITY OF IFE LAW REPORT AT Pg 417*

In this case the plaintiff were engaged in building, civil engineering and planting business, under the
same name and style "Mercury business" and in the west they gained ground.

Now, the defendant registered a company with the name " *Mercury builders NIG LTD* to carryon
similar business in the west..

The plaintiff successfully obtained an injunction to prevent the defendant from carrying out business
with the said name in order not to deceive the Public.
*LAW OF TORT NOTE*

*PASSING OFF*

The act of falsely representing one's product as that of another in an attempt to falsely deceive another.

Whenever a person sells goods or carries on a business under a name or trade mark or description or
otherwise does anything to deceive the public into believing that the description of the goods are
owned by another person and thereby takes advantage of that persons reputation and goodwill, that
person will be liable for passing off.

Passing off is one of the common law remedies against unfair competiton. It is designed to protect
traders.

*NIGER CHEMIST V NIGERIA CHEMIST LTD.*

*ELEMENTS OF PASSING OFF*

Lord Diplock, in *ERWEN WARREN V J. TOWNSEND AND SONS (1979)*

Highlighted the elements of passing off as follows;

1. There must be some misrepresention

2. The misrepresentation must have been made by a trader in the cause of his trade or business

3. He is making the representation to prospective customers of the goods and services provided by him

4. The misrepresention is calculated to injure or to affect the business or goodwill of another trader
5. The misrepresentation causes damage or threatens to cause damage to the business or goodwill of
the trader by whom the action is brought

Passing off is actionable per se and does not require actual damage or any proof of damage in order to
succeed. Where no damage has occurred or where one has not suffered any damage but potential
damage is apprehended, a right of action will still lie.

*FORMS OF PASSING OFF*

1. Trading with a name resembling that of the plaintiff.

The use of a name for business is legally qualified by the law of passing off and even by company law.
Where the defendant engages on the same type of business as the plaintiff and uses the plaintiffs name
or a name closely resembling the plaintiffs name as a result of which the public or potential customers
were confused and mislead into thinking that they are one and the same business, an injunction
restraining the defendant from using the name may be granted.

In *HENDRICKS V MONTAGU*, the plaintiff carried out insurance business under the name Universal Life
Assurance Society, and they successfully got an injunction to restrain the defendant which was another
insurance company, from carrying on business under the name Universe Life Assurance Association.

According to James L.G, he posited,

*Now is there such a similarity between those names that one is in the ordinary cause of human affairs
likely to be confounded wothy the other, are persons who have heard of the universal likely to be
mislead into going to the universe, I shall think, very likely; Many people do not care to bear in mind the
very letters they have heard*

*NIGER CHEMIST V NIGERIA CHEMIST LIMITED*,

The plaintiff chemist succeeded in an action against the defendant. An injunction was granted to stop
the defendant from carrying out business as Nigeria chemist Ltd. The Court held that the use of the
name was to deceive people who have been dealing with Niger chemist.

*OGUNLENDE V BABAYELE (1971) 1 UNIFLR at pg. 417*

The defendant registered a company with the name Mecury Builders Nigeria Ltd to carry on similar
business in the west. The plaintiff obtained an injunction to restrain the defendant from carrying on
similar business with that name so as not to deceive the public.

2. Marketing product as that of the plaintiff.

*DAMAGE*

Deceit is not actionable per se. There must be proof of damage or loss suffered by the plaintiff.

No action will lie for a false statement unless the plaintiff did rely and act upon it and suffered harm in
consequence.

A mere effort made to deceive another is not actionable. It is sufficient however that the false statement
was among the factors that prompted the plaintiff to act the way he did.

It is important that the plaintiff should prove damage. This damage does not necessarily need to have
been suffered at the time the plaintiff acted on the statement. The damage may come sometime after.

See - *DIAMOND V BANK OF LONDON & MONTREAL LTD. (1979) QB PT 333*

Damage may be in form of financial losses. It may be personal loss as well loss to property.

Finally, in the tort of deceit, the test of remoteness of damage, lies in the direction of the damage and
not in reasonable foresight.