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Tort Answer Script

The document is an examination answer script for a law course at Uganda Christian University, focusing on tort law and negligence. It discusses various legal issues related to a case involving Hon. Semata and General Allan Mwine, including defamation, battery, false imprisonment, and potential defenses. The script outlines applicable laws, case precedents, and the resolution of issues pertaining to the actions of the parties involved.

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0% found this document useful (0 votes)
9 views14 pages

Tort Answer Script

The document is an examination answer script for a law course at Uganda Christian University, focusing on tort law and negligence. It discusses various legal issues related to a case involving Hon. Semata and General Allan Mwine, including defamation, battery, false imprisonment, and potential defenses. The script outlines applicable laws, case precedents, and the resolution of issues pertaining to the actions of the parties involved.

Uploaded by

ladu john
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

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TORT Answer Script

Law of tort and negligence (Uganda Christian University)

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Examinations Answer Sheet Trinity 2020/Advent Semester 2021


CANDIDATE’S REGISTRATION NUMBER
A
Non-Retake S 1 9 B 1 1 0 3 8

Retake

ACCESS NUMBER: ______A86992___________________


COLLEGE/CAMPUS: (If not Main Campus) ______________________________________

FACULTY: ______LAW_________________ PROGRAM (e.g. LLB1, BSW2, MDIV2) __LLB 2


_________

COURSE OF EXAMINATION ___NATURE AND HISTORY OF TORT


_________________________________________________
(As Shown on the question paper)

DATE OF EXAMINATION: January 22nd 2021th – February 5th 2021


NB: No Answer Script shall be accepted after 05th February 2021 midnight
NOTE:
Uganda Christian University Integrity Covenant
For Examiners Use
As a student of theQUESTION
Uganda Christian University, it2,
1, QUESTION is OUESTION
my responsibility
4 to conduct Only
the whole of my academic career with unwavering integrity. I do this because I
value integrity 1and because the entire scholarly enterprise is balanced on the
QUESTION Q I.E. E.E.
assumption that we can trust one another.
BRIEF FACTS
Therefore, I pledge to act with academic integrity by;
Hon. Semata Ngonzi a Member of Parliament and General Allan Mwine a
i. Writing this examination
Ugandan ii.
military officer and a member
Identifying/acknowledging the of Parliament
source wereorhaving
of the ideas words ora debate
images on
that I used
UWC’s The Today’s in my work
Headlines Show on whether Uganda can have a peaceful 2021
By writing
Presidential this examination
election. Semata Iaccused
accept toGeneral
be bound Allan
by this for
covenant, and people
burying accept the
alive,
consequences if I am in breach thereof
roastingYour
people in Mutukula,
Response Should killing more than 45 people for burning tyres and
Be typed
rioting and shooting in digitaland
at arcades word format
taxis. He and submitted
further in Portable
told Hon. Mwine ofDocument
pretending
Format (.pdf)
to be a patriot andthemaking people’s
MS fontfamilies
type; sizesuffer.
11, LineGeneral Allan warned Semata
 Use Trebuchet spacing 1.5
from misinforming the public but
Submit your examination Semata
answers insulted
to the him
University instead.
through the Semata slapped the
email provided
on the question paper
police officer who ha d come to arrest him after the show. He was taken to a place
whose location he did not know and released on 20 th December after being denied
access to his family and lawyers. He was also held on gun point and faced constant Total
death threats. Mark
ISSUES
LIST
[Link] ANSWERED
Whether Hon Semata(in issued
their Numeric order)
a defamatory
statement against General Allan Mwine on The UWC TV Show?

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2. Whether Hon Semata is liable for the tort of battery?


3. Whether the Police is liable for false imprisonment?
4. Whether Hon. Semata and the Police can raise any defenses?
5. What remedies are available to Hon. Semata?
LAW APPLICABLE
The Constitution of the Republic of Uganda (1995) as amended
Case law
Black’s Law Dictionary, 11th Edition and 8th Edition
Key Facts Key Issues Tort Law
Street on Torts
Winfield and Jolowicz Tort

RESOLUTION OF ISSUES.
1. Whether Hon Semata issued defamatory statements against General Allan Mwine on
The UWC TV Show?
The case of Wasswa Matovu V Byamureeba and 7 others1 stated the elements of
defamation to include that the statements complained of are defamatory, that they refer to
the plaintiff, and that they were maliciously published by the defendants.
In Ssejoba V Rev. Ryabigonji2 a defamatory statement was defined as one which has the
tendency to injure the reputation of the person to whom it refers by lowering him in the
estimation of right thinking members of the society and in particular to cause him to be
regarded with feeling of hatred, contempt, ridicule , fear dislike and esteem.

The test used to determine whether a word is defamatory was laid down in the case of Sim
V Stretch3 where Lord Atkins stated that the word ought to “expose the plaintiff to hatred,
ridicule and contempt.” However, this test was amended and adopted with approval in the
case of Honorable Peter Onega V John Jaramoji Olya 4 where it was stated that the test
would be “would the words tend to lower the plaintiff in the eyes of the estimation of the
right thinking members of the society generally?” However the insults made by Hon. Semata
where he named the General as being undisciplined cannot be taken to be defamatory
statements5.

1 Civil Suit no.391 of 2012


2 Civil Suit no.1 of 1976
3 [1936]
4 HCCS No. 114 of 2009
5 Thorley V Kerry [1812] 4 Taunt 355

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The defamatory statement issued was a slander as defined in the case Nyeko V Uganda
Broadcasting Corporation Company6 of as a false tale or report maliciously uttered ,
tending to injure the reputation of another, or the malicious utterance of defamatory words
and dissemination of such defamatory statement. In the facts above, Hon Semata can be said
to have issued a defamatory statement of slander because he accused General Mwine for
burying people alive, roasting people in Mutukula, killing more than 45 people for burning
tyres and rioting and shooting at arcades and taxis and these words lowered General Mwine in
the eyes of the right thinking members of the society.

The second element is that the defamatory statement was in reference to the claimant
should have been made to a third party. The test of whether the words referred to the
claimant is whether a hypothetical, sensible person having knowledge of the circumstances
would believe that the claimant was referred to per the case of Morgan V Odhams Press Ltd7
In the instant facts, the statement was indeed made in reference to General Mwine as it was
done through UWC TV that the information reached the people who in this case are the third
party.

The third element requires publication of the statement. In the tort of defamation is not
committed unless the statement concerned is communicated to at least one person other
than the claimant.8 The statement must be one that can be understood by the recipient and
to this effect, in Daniels V British Broadcasting Corporation 9, it was held that there is no
publication if the recipient does not understand it. According to the above facts, the
statement was actually published and this can be imputed from the fact that Hon. Semata
was arrested thus the statement had been had and understood by someone other than
General Mwine. The publisher in this case was UWC TV as concluded in the case of Tamiz V
Google10 where it was held that once Google became aware of the fact that the
dsatatemnent was defamatory then it became a publisher of the material. Thus UWC TV can
be said to have published the material by letting it air on the show to be received by the
public and yet the content was defamatory and thus can become a party to the action of
defamation against General Mwine. Therefore, from the facts above, it can be imputed that
Hon. Semata published defamatory statement having fulfilled all the requirements set out by
law.

6 HCT-CR-CS-0044-2013
7 [1971] 1 W.L.R 1239
8 W.E. Peel & J. Goudkamp, Winfield & Jolowicz Tort, (19th edn, Sweet &Maxwell, 2014) para.13-020
9 [2010] EWHC 305, (QB) AT 467
10 [2013] EWCA Civ 68; [2013] W.L.R 2151

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2. Whether Hon Semata is liable for the tort of battery?


Battery has been in Collins V Wilcock11 as a touching of another with hostile intent or any
intentional touching outside the scope of what is normally acceptable. It’s crucial that the
act committed is not only direct but also intentional. In the case of Scott V Shepherd12, it
was held that for the tort of trespass to person for which battery is merely a form, the act
done must have been direct in such a way that it affected the claimant and caused unlawful
harm. On the issue of intention, in the fundamental case of Letang v Copper13, it was held
that where the damage caused by an action was not intentional, then the proper action is
one of negligence. There also ought to be a positive act done by the defendant in this case
14
being Hon. Semata. This was the decision in the case of Innes V Wylie where Denman CJ
stated that the defendant must have taken active measures to prevent the entering of the
room and not just standing there for such did not amount to battery. In the facts stated
above, Hon. Semata did a positive act by slapping the police officer and so he fulfilled the
element of a positive act.

Similarly, there is also need for application of force in the tort of battery as was stated by
Holt CJ who said ‘The least touching of another in anger is a battery.’ 15 Thus, Hon. Semata’s
slap touched the body of the policeman amounting into battery. In conclusion, Hon. Semata
committed the tort of battery as can be concluded from fulfilling all the required elements of
being direct and intentional, a positive act and application of force.

3. Whether the Police is liable for trespass to person to include false imprisonment
and assault?
False imprisonment is defined as a tort where the defendant imposes intentionally and
directly a total restraint on the liberty of the claimant. 16 Thus for the tort to stand the
restraint must be total as stated in the case of Birds V Jones17 where court elaborated on a
prison to be one that has a boundary large or narrow, visible and tangible moveable or fixed
which has a boundary where the party imprisoned is prevented from passing. In the instant
facts, Hon. Semata was taken to a place he did not know only to be released on 20 th
December, 2020 implying that the place had boundaries which he could not pass.

11 [1984] 1 WLR 117


12 (1773)2 WBI 892
13 [1961] 1 QB 426
14 1844]174 ER 800
15 Cole V Turner (1704)
16 Chris Turner, Key Facts Key Issues Tort Law, (1st edn, Routledge, 2014) p.169
17 (1845) 7 QB 742

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Another consideration is also on the fact that the restraint must be unlawful. In the case of
Herd V Weardale Steel, Coal and Coke Co. ltd 18 it was stated that where an employee has
to work until his shift is done, he cannot claim to be falsely imprisoned if he is held up until
his shift is actually. In this case it was noted that for the restraint to be unlawful, there
should be a lack of consent. In the above facts the arrest was unlawful because Hon. Semata
did not consent, he was not informed on the reason as to why he was being arrested, he was
denied access to his family and lawyers. Therefore, the police can be said to have committed
the tort of false imprisonment.
Assault on the other hand is any act of the defendant that directly and intentionally or
negligently causes the claimant reasonably to apprehend the imminent infliction of a
battery.19 In Letang V Coper20 it was held that the act must be direct and intentionally
otherwise the cause of action lay in negligence. It is now trite law that threatening phone
21
calls amount to assault because they also cause reasonable apprehension This exists in the
facts above as Hon. Semata was issued with death threats thus causing reasonable
apprehension to him. There is also a requirement of an imminent battery as was stated in
the case of Tuberville V Savage22 where court held that a threat promised to be done in the
future could not constitute a battery and emphasized the need for an act of assault that can
cause imminent battery. The act of the police of holding Hon. Semata on gun point can
constitute imminent battery as it’s an act of assault as earlier on referred. Thus, the police
can be held liable for assault.

4. Whether Hon. Semata, UWC TV and the Police can raise any defenses?
The defense of fair comment is available to Hon Semata. This defense was renamed honest
comment was rebranded in Joseph V Spiller23 as ‘honest comment’. Jolowicz states that from
this defense to stand, three elements should be fulfilled and these are that the element in
question should be a statement of opinion, it must indicate in specific or general terms the
basis of the opinion and that it should have held the opinion based on any fact that existed at
the time the statement was published. 24 According to the instant facts, Hon Semata can raise
the defense of honest comment since the actions he claimed were being committed were
actually taking place at the said time, they were merely statements of opinion and the basis
of opinion was clearly stated as Hon. Semata showed his detest for misuse of military power.

18 [1915] AC 67
19 J. Murphy and C Witting, Street on Torts, (13 edn, Oxford University Press, 2012) p.263
20 [1965] 1QB 232
21 R V Ireland [1998] AC 147
22 (1669) 1 Mod Rep 3
23 [2010] UKSC 53; [2011]1AC 852
24 Winfield and Jolowicz Tort n (9) p.13-094

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He can also hold the defense of truth. In this defense the defendant has the burden of
proving that the statement said was the truth. 25 UCW TV can raise the defense of publication
on the matter of public interest. The Reynolds case26 established that this defense is
supposed to have two elements and these include that the defendant must have acted
responsibly in publishing the statement and that the statement must have been pf public
interest. In the instant facts, UCW TV acted responsibly by inviting two politicians to debate
on issues of public interest like the rampant killings that were said to be taking place without
knowing what the conversion would entail. The police can raise the defense of lawful
authority. There is a general rule that a person acting out of lawful authority like the Police
cannot be held liable for any acts committed.

5. What remedies are available to Hon. Semata?


The other remedy available is general damages Hon. Semata due to false imprisonment
exhibited by the police. According to Ben Twinomugisha27 “General Damages reflect the
loss, which should flow directly or naturally from the breach of the contract.” In the case of
Musisi Edward V Babihuga28 it was held that for a party to be eligible for damages,he or she
should have suffered a loss or an inconvenience. The inconvenience that Hon. Semata
suffered can be seen to reflect from the fact that he was not allowed to access his family and
lawyers and the threats he was said to encounter.
General Mwine can get damages for defamation done by Hon. Semata. The genrall rule is that
slander is only actionable on proof of special damages 29 where on once pleaded and prove can
be awarded him. He is entitled to exemplary damages as stated in the case of RTD Justice
Samuel William Wako Wambuzi V Editor in Chief, Red Pepper Publications Ltd 30 where
exemplary damages were awarded to the plaintiff and the rationale was given by way of
approval of the case of Roakes V Barnard 1946 ALL ER where these were considered punitive
and penal in order to deter the defendant from repeating the wrongful act.

QUESTION 2
BREF FACTS

25 Geodfrey Ssejoba V Rev Ryabigonji Patrick


26 Reynolds V Times Newspaper Ltd [2002] 2 AC 127
27 Twinomugisha Ben, Principles of Contract in Uganda, (1st edn, Makerere University Printer, 2018)
p.202
28[2007] HCB 83
29 Lynch V Knight (1861) 9 H.L.C 597 at 600
30 Civil Suit no.305 of 2015

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On 22nd May, 2020 while in the course of his employment as the driver with URA, he was
intercepted and his vehicle impounded by the URA officials even after he had explained that
his role was to drive tracks to the destination from Kisumu to DRC. Even the log book was in
his names. He was arrested and detained for 12 days and later re arrested for charges of
smuggling. John’s friend called his heavily pregnant wife who upon receiving the news,
suffered a nervous breakdown and lost the baby. URA instituted criminal proceeding in the
case of Uganda V John Kazoba & Anor Crim Case no.499 of 2007 at the Chief Magistrate in
Nakawa but he was acquitted. He alleges that he lost his job and could not find another.
ISSUES
1. Whether URA can be held liable for the acts of an independent contractor?
2. Whether the URA officials are liable for inflicting mental suffering to the wife of
Kazoba?
3. Whether URA officials are liable for malicious prosecution?
4. Whether the Hospital is liable for battery?
5. What remedies are available?
LAW APPLICABE
1. The Constitution of the Republic of Uganda 1995 (as amended)
2. Case law

RESOLUTION OF ISSUES
1. Whether URA can be held liable for the acts of an independent contractor?
The liability that URA can suffer for their employee can be termed as vicarious liability. This
was defined a rule of responsibility which renders the defendant liable for the torts
committed by another31 in order to establish whether John Kazoba is an employee of URA, it
is important to know whether he was offering a contract for service or a contract of service.
The test applied in establishing this was laid down in the case of Market Investigators Ltd v
Minister of Social Security32 where court held interlia that the test would be whether the
person is engaging the services as a person in business on his own account and if on
consideration of the surrounding circumstances the answer is no, then the person is an
employee and if it is a yes, the person is an independent contractor. In the instant facts, the
person is an independent contractor because he is carrying business in his own account as
even the log books are in his names not those of URA.

31 Giliker Paul, Vicarious Liability in Tort, (1st edn, Cambridge University Press, 2010) p.1
32 [1969] 2 QB 173

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Thus it is trite law that for an employer to be held liable, the employee must be in the course
of employment33 and although this was the case in the instant facts, John Kazoba was working
on his own account which makes him an independent contractor in the course of his
employment and so he cannot be covered up for by the law.

2. Whether the URA officials are liable for inflicting mental suffering to the wife of
Kazoba?
Infliction of mental suffering includes a primary and secondary victim. The case of Alcock V
34
Chief Constable of the South Yorkshire Police creates a distinction between the two
where in order to be a secondary victim, the person must establish that the has a close tie of
love and affection to a primary victim, appreciation of the events with their own unaided
senses, proximity to the event or its aftermath in terms of space and time and that the
psychiatric harm must be caused by a sufficiently shocking event. In another case, the
degree of relationship between the claimant and the person in danger and the proximity to
the event are also considered. 35 the clamant must have suffered a psychiatric injury which is
recognize by Law.36 In this case, she got a nervous shock which consequently led to the loss of
the baby. In the instant facts, Kazooba’s wife is a secondary victim since she’s not only his
wife so she shares a close tie of love and affection, but also she was simply called by John’s
friend which indicates that she was not at the crime scene but she suffered its aftermaths as
she lost her baby which she was able to perceive using her senses.
3. Whether URA officials are liable for malicious prosecution?
The case of Mugabi John v Attorney General37 stated the essential elements of malicious
prosecution to include that the proceedings must have been instituted by the defendant, the
defendant must have acted without reasonable cause, the defendant must have acted
maliciously and that the proceedings must have been terminated in favour of the plaintiff.
The element of proceedings being instituted by the defendant must show a more direct
involvement in the process of prosecution other than a mere complaint to the police as
decided in the case of Martin V Watson38. In the facts above there was a direct involvement
as a case was opened as Uganda V John Kazoba & Anor Crim Case no.499 of 2007 at the Chief
Magistrate in Nakawa.

33 Dubai Aluminum CO. Ltd V Salam [2003] 2 AC 366


34 [1991] 4 ALL ER 907
35 Jones V Wright [1991] 2 WLR 814
36 Borhill V Young [1943] AC 92
37 HCCS No.13 of 2002
38 [1996] 1 AC 71

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Secondly the defendant must have acted without reasonable and probable cause. The test
used in this case is an objective test as stated by Byamugisha J39 where any information elide
on by the prosecution must be capable of satisfying an ordinary prudent and cautious man to
the extent of believing that the accused is probably guilty. According to the above facts, the
impounding and arresting of John Kazoba was unreasonable since no evidence was tendered
to show that he had any smuggled goods in his car. Malice as an element was defined in the
case of Stevens V Midland Counties Rly40 as motivation by some desire other than of bringing
the accused to justice. John Kazoba was prosecuted maliciously since he did not even
smuggle the goods in the first place.
Lastly the proceedings were also in favour of the claimant as stated in the case of
Mohammed Tusiime V URA41 where it was held that if the claimant was acquitted or the
proceedings dropped or discontinued, or if the conviction is quashed on appeal, malicious
prosecution can stand,. In the instant facts, John Kazoba was actually acquitted thus
satisfying this element hence the URA officials can be held liable for malicious prosecution.
4. Whether the Hospital is liable for battery?
For a hospital or health worker to be held liable for battery, the requirement for consent is
really key. This approach was given by Lord Goff 42 and approved by Lord Hoffman in the case
of Wainwright V Home Office43 where he stated that a doctor must either show that the
consent was given for the touching or that the touching was necessary for the best interests
of the patient. Therefore, according to the instant facts, the hospital should be held liable for
battery since they did not seek the consent of Jacob’s wife before disposing off the baby.

5. What remedies are available?


Jacob Kakooza can recover both special and general damages. It must be noted that it is trite
law that damages should not be received where they are too remote with the wrongful act. In
Hadley V Baxendale44 it was stated that one who commits a wrongful act is not liable for
damage which is not the natural or ordinary consequence of such an act. The purpose of
damages is to compensate the plaintiff for his / her losses. In the case of Musisi Edward V
Babihuga45 it was held that for a party to be eligible for damages,he or she should have
suffered a loss or an inconvenience. John not only lost a job but also a baby. He can also
claim the same from the hospital to cover the emotional turmoil they went through for not

39 Dr. Willy Kaberukas V Attorney General Civil Suit No.1260 of 1993; [1994] 11 KALR 64
40 (1854) 10 Exch 352
41 HCCS no.480 of 2016
42 F V West Berkshire Health Authority [1989] 2 ALL ER 545
43 [2003] 4ALL ER 969
44 (1843-60) ALL ER
45[2007] HCB 83

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having closure for the death of their child. On the other hand, specific damages mean the
damages arising out of the special circumstances of the case. 46 In the case of Ronald
Kasibante V Shell Uganda Ltd47 court held that special damages must be pleaded and strictly
proved by the party claiming them. John can claim special damages for the medical bills he
incurred due to the loss of the baby.

QUESTION 4
The definition for trespass to Land was given in the case of Bocardo SA V Star Energy UK
Onshore Ltd48 per Lord Hope “ a trespass occurs when there is an unjustified intrusion by one
party upon land which is in possession of another. It is trite law that without possession it is
not sufficient to support an action of trespass. 49 On the other hand land has been traditionally
defined as cujus est solum ejus est usque ad coleum et ad inferos (the action extends to the
air above the land and the sub- soil beneath it) To this effect, trespass in the air space can
only be committed when it interferes with the claimant’s ordinary use of the property as per
the case of Kelsen V Imperial Tobacco Co.Ltd50
Trespass to land is only actionable only by the person who has the immediate right to possess
the land.51 This includes a person who is possession of the land by virtue of a licenses then
only the licensee can bring an action in trespass to land as decided in the case of Manchester
Airport PLC V Dutton52 Similarly, a lesser cannot bring an action in tort but rather the tenant
to whom the land has been leased is considered to have possession to the land and can bring
an action in trespass during the currency of the lease as decided in Lane V Dixion.53 The only
exception here is where the land has suffered a permanent damage. 54 The extent of
ownership is only to such height as is necessary for the ordinary use and enjoyment of the
land and structures on it.55 It should be noted that slightest crossing of a boundary is
sufficient in the for a cause of action in trespass to land to stand.56

46 Ashby V White [1703] 2 Ld Royn 936.


47 HCCS No.54 of 2006
48 [2011] AC 380 at 386
49 Winfield and Jolowicz n (9) para.14-009
50 [1957] 2QB 334
51 n (50)
52 [2000] QB 133
53 (1847) 3 C.B 776
54 Mehta V Royal Bank of Scotland [1999] 3 E.G.L.R
55 Didow V Alberta Power [1988] W.W.R
56 Westripp V Baldock [1938] 2ALL ER 799

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The trespass needs there to be a direct and immediate interference and where there is
indirect interference, it is actionable as a nuisance or negligence 57. This tort is a continuing
trespass and it is not time barred by Section 2 of the Limitation Act58 as discussed in the
case of Nakiito Vs. Senyonga & Another59court held that trespass is a continuous tort and
therefore new action of trespass is a new cause of action. It does not matter whether the
claimant has already paid for compensation in a suit of trespass, failure to remove the item of
trespass results into a new cause of action as decided in the case of Holmes V Wilson60

Interference can be done in many forms and one of them is that can be trespass abinitio. “If a
person enters land lawfully then does an act inconsistent with his rights, then the entry is
deemed unlawful from the beginning despite his original lawful entry”. 61 Placing of things on
another person’s land can amount to trespass as seen in the case of Jones V Stones62 where
placing of a flower pot and oil tank on a boundary wall amounted to trespass. Misuse of
permission granted to someone to access land can amount into trespass 63 Failure to control
water channels and water gets into the claimants land also leads to the raise of tort in
trespass to land.64 Blockage of a highway can also amount to trespass65

b) The defense of license is considered to have given a person permission to stay on the land
so they can be termed as trespassers.66 The case of RobsonV Hallet 67
license is considered to
give a person permission to be on the land. The effect of such a defense is that when it is
successfully proved, it is absolute and renders the person acquitted.
A person can also raise the defense of justification by law. This entry can be justified by
statute. Where the acts of the claimant can be justified by law, they cannot be held liable.
The case of Thomas V Sawkins68 stated that the police has power of entry to premises to
prevent a breach of the peace. However, for instance in the case of a police officer they must
give the occupier reason for exercising the power of entry.69

57 Smith V Giddy [1904]2 KB 448


58 Cap.80
59 HCCS No. 170 of 2018
60 (1839)10 A&E. 50
61The Six Carpenter’s Case (1610) 8 Co Rep 146
62 [1999] 1 WLR 1739
63 Hillen V ICI (Akali) Ltd A.C. 65
64 British Waterways Board V Severn Trent Water ltd [2001] EWCA Civ 276
65 Randall V Tarrant [1955] 1 WLR 255
66 Robson V Hallet [1967] 2 QB 939
67 [1967]2 QB 939
68 [1935] 2 KB 249
69 O’Loughlin V CC Essex [1998] 1 WLR 374

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The defense of necessity is also available for the tort of trespass to land. This includes both
private necessity and public necessity. However in order to invoke the defense of private
necessity the defendant must show that it was reasonably necessary to save the property
from real and imminent danger70 For public necessity to stand, the case of R V Bourne71
stated that the defendant must have acted in good faith and exercised their professional
judgement.

Common law also provides for the defense of consent. The burden of proof is on the claimant
to prove that he did not consent since it amounts to a denial in proceedings of trespass. 72
Three factors must be addressed for this defense to stand. The first is the knowledge of the
risk where by the case of Morris V Murray73 stated that a subjective test is used as court asks
what the claimant knew at the time of the happening of the event. The second factor is
voluntariness. In this defense, the claimant must have exercised their freedom of choice as
74
seen in the case of Bowater V Rowley Regis Corp where court held that in circumstances
where the claimant had no say in the issue, then the defense does not apply and that
employers cannot be said to consent to a risk that happens as a result of being part of their
work. Agreement is the third factor where this can be express or implied. Implied consent can
be imputed from the conduct of the claimant as seen in the case of Imperial Chemical
Industries V Shaltwell75 where the claimants decided to press ahead despite being aware of
the risks ahead. However if the danger is staggeringly clear, then the court will not imply
consent.76

BIBLIOGRAPHY

Garner. A. B, Black’s Law Dictionary, (8th edn, 2004)

Giliker P, Vicarious Liability in Tort, (1st edn, Cambridge University Press, 2010)

Murphy J and Witting C, Street on Torts, (13 edn, Oxford University Press, 2012)

Peel W.E & Goudkamp J, Winfield & Jolowicz Tort, (19th ed., Sweet &Maxwell, 2014)

70 Cope V Sharpe [1912]1 KB


71 (1939)1 KB 687
72 Freeman V Home Office QB 524 AT 539
73 [1991] 2 QB 6
74 1944] KB 476
75 [1965] AC 656
76 Dann V Hamilton [1939] 1 KB

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lOMoARcPSD|9291294

Twinomugisha B, Principles of Contract in Uganda, (1st edn, Makerere University Printer, 2018)

Turner C, Key Facts Key Issues Tort Law (1st edn, Routledge,2014)

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