Vous êtes sur la page 1sur 24

INTRODUCTION TO LAW

THE DEFINITION OF LAW


The question what is law? Is one of the most difficult questions that can be
posed to anyone to answer? In the first place, law is all embracing in scope and
dimension, that is why it becomes difficult , if not impossible for anyone one to
state and appropriate definition of law.
Secondly, the more an attempt is made at defining law, the more other
problems deserving further solutions will arise. As a result of this apparent
impress, philosophers, jurist and legal scholar have adopted a more viable method
of describing what law does in a given society rather than embarking on a futile
exercise at definition. Despite these difficulties, there are some observable features
that are unique only to law. For instance, law consists essentially of a body of
rules. The set of rules are usually designated to regulate human conduct, and the
main setting for the operation of law is the society. Law once made, is meant to be
obeyed and this goes on with the act of enforcement and above all, there is usually
a reproach or sanction for any act of violation or defiance.
Law is a system of rules a society sets to maintain order and protect harm to
persons and property. Law is ancient; dating back at least to the Ten
Commandments which at the time when it was being handed down to Moses it was
just a set of rules. It only became law when it was backed by sanctions. This goes
with the legal theory which states and I quote law only becomes law when it is
backed by punishment. On the other hand is the code of Hammurabi, written by an
ancient Babylonian king around 1760 BC. Most countries have tens of thousands
of pages of law; laws are enforced by the police, supported by the court and prison
systems. Laws are written by legislators such as parliamentarians, senators or
1

congressmen. Laws most uphold and not contradict the constitution especially in
Cameroon.
Notwithstanding the above, a number of definition have been profiled by
some authors and jurist in which we shall closely examine same ROSCOE
POUND in his articles entitled (More About The Nature Of Law) pointed out two
ideas running through the definition of law,
An imperative idea; an idea of rule, laid down by the law making organ of a
politically organized society during its force from the authority of the
sovereign.
A rational /ethical idea; an idea of a rule of right and justice dawning its
authority from its intrinsic reasonableness or conformity to ideals of rights
and mostly recognized not made by the sovereign.
JOHN AUSTIN in the ( PROVINCE OF JURISPRUDENCE DETERMINED)
defines law as; A rule laid down for guidance of an intelligent being by an
intelligent being having power over him a body of rules fixed and enforced by a
sovereign political authority PROFESSOR HART defined law as a system of
rules, a union of primary and secondary rules.
GLANVILLE WILLIAM in Learning the Law defines law as law is the
cement of society and also an essential medium of change. Knowledge of law
increases one understands of public affairs, its study promotes accuracy of
expression facility in argument and skill in interpreting the written word, as well
as some understanding of social valves.
On his part, RICHARD POSNER pointed out that, it will be helpful to distinguish
three senses of the word law that is:-

1. Law as a distinctive social institution that is sense evoked when we ask


whether primitive law is really law.
2. Law as a collection of sets of proposition; as for instance sets here will
referee to substantive law like the law of torts, or the law of contract
3. The law as a source of rights, duties and power,
SALMOND defined law as, the body of principles, reorganized and applied by the
state for the administration of justice.
VINA GRADOFF defined law as set of rules, imposed and enforced by the
society, with regards to the attribution and exercise of power over persons and
things. According to him it is important for the society to recognize the binding
nature of the rules upon them.
Law in the legal sense is of the interest to lawyer and jurist, and law from the
lawyers point of view is an instrument of social order and cohesion It is the
means of obtaining social harmony by curbing the evil passion of man. Law
referees to the rule made by a recognized authority that is to say, parliament
senator or the head of state for proper regulation of the society.
In its simplest meaning, law is a body of rules of conducts, prescribed by a
recognized authority with binding legal force, the violation of which may attack
punishment. Law is a term derived from the Anglo-Saxon word lagu which was
derived from the verb leggie meaning to determine
The disputed question is, is law really needed? As simple as it may seem to
answer, it is fundamental that we ask. Personally, law are guidelines that set out
appropriate behavior that has been developed overtime, and are based on moral
beliefs, a human conditions that set out a purpose that society in general is called
upon-or required to fulfill. With out the fulfillment of these desired tasks, man
simply will become equal to animals or worse still, allow their darker sides to
3

emerge and control there lives. Thus, law acts as a guardian against the inevitable
anarchy that would have engulf humanity.
A legal rule is what known as law. The law is a legal rule. A legal rule may be
define as a rule of human conduct which is recognized by people of any given
society, as being obligatory and which therefore the society can force us to obey by
external compulsion.
Differences between common law and civil law
Two systems of law operate in Cameroon. These are the common law (English
private law) which is dominant in the Anglophone regions of Cameroon and civil
law (French private law) which is what is common in the French regions of
Cameroon. The U.S has a hybrid legal system. However, common law and civil
law happens to be the most prominent legal system in the world today. The essence
of this particular topic is to clearly make a difference between the various legal
systems. Common law is the law created by judges on a case by case basis whereas
civil law is created by a civil authority to be applied to all cases. However,
Cameroon happens to be unique because of its bi-jurial nature.
Common law
Common is a body of law that develops over time through the decision of judges
deciding out comes on case by case basis rather than from statutes or constitution.
In this system, past cases and their decision are relied on to determine what the
outcome ought to be in a current case. The application of past decision to current
cases is called precedent.
However, in the united state this type of judge made laws creates or makes up the
bulk of our civil law, which is one of two major types of laws in the United States.
Civil law
Civil law or Roman law is the second prominent legal system in the western world
and Cameroon. The civil law describe a system where by the law of the land is
derived from the civil authority or the state. Typically, this were written laws that
did not relate to any particular present controversy or dispute, but was intended to
anticipate future dispute and guide behavior to avoid them. The civil law system
4

set forth penalties or redress that would be available for the failure to abide by
them.
The U.S Hybrid
The legal system in the united state is said to be common law system, based upon
the system of England from which the united state borrowed heavily upon its
establishment. The U.S hybrid has heavily incorporated the common law system in
its civil law and in building its criminal and administrative law system on a civil
law or state driven model. Only one state out of the 49 U.S state adopt a civil law
system which is Louisiana.
Importance of law to the society
Knowledge of the law increases a persons understanding of public affair. It study
promote accuracy of expression especially in argument and skills in interpreting
written words as well as some understanding of social values.
The question if law is important to the society may seem strange. The answer to
this perfectly legitimate question is reasonably clear. The impact of the law on any
citizen in a modern community affects every aspect of his life. We eat with the
law, sleep with the law, dance with the law etc.
Law is to society, as fresh air or blood is to the human body. There can be no
society without law. The law will regulate and control almost every facet of a
person business. The terms and condition of employment, any purchase he may
make for the good of his family and relations. Law controls a mans duty toward
his neighbor and towards the state. It also control persons rights toward the state
infect, law is directly concern with the daily affairs of every citizens. Every citizen
expected to have some knowledge of the law.
Law is essential to the existence of human association men cannot co-exist in the
society without rules of obligatory behavior. Law is not mainly an attribute of
society, but in Clerical terms and element of it, in the sense that, without law there
can be no society. Law is the cement of the society and also an essential medium of
change. There are therefore, strong reasons, both on cultural and scientific grounds
for students of other disciplines to have at least some elementary knowledge of
law.

Jeremy Bentham stated Without law, there is no security and consequently no


abundant, and not even a certainty of existence and the antithesis largely on the
domination of the weak by the strong, so that it is characterized by continuous
disorder.
Law enforcement, unless law is enforced it ceases to be law and those subjected to
it will regard it as dead. The main characteristic of law is that it is enforced, such
enforcement being today carried out by the state.
Validity of law
Several theories of law exist in the world today. An outline of these several
theories will be examined here. If the student expect to find in this lecture more a
final dogmatic answer as to what law is, he will be disappointed. The concepts of
law are however varied. Most of the problems reside in the fact that the term law is
wide and can be used in different context. When a person used the term law, it can
be easily understood in the context in which it is used. Whatever the case, law is
always recognizable whenever it is seen. The question now is what are the
attributes of law that makes it recognizable when seen?
Here, there is no consensus and all what can be seen is various theories of law that
have been put forward, even though these too are not free from criticisms.
Natural law theory
The law of nature made different things at different times. At one time was natural
law, then natural right of man, but today it is called human rights. These changes in
the appellation of natural law do not mean the law changes.
Natural law dates back to ancient times and was also prevalent in early village
ages. It is that form of natural law which grew from believes that the gods or the
supernatural power reign over everything and it lies just as much in their power to
suspend or after the normal physical cause of things. The phrase natural law in the
legal theory refers to the law of nature. The naturalist believes that such laws of
nature are divine inspiration. Hence the writing of Thomas Aquinas, a Catholic
priest and philosopher greatly influenced the theory of natural law. The theory of
natural law is the belief that there are certain rules and characteristics that are
common to all mankind and which are of Divine inspiration.

Legal Positivism
The term positivism has many meaning which were established by Prof Hart as
follows:
Law is command- This meaning is associated with two founders of British
positivism namely: Bentham and his disciples Austin.
The analysis of legal concept is
a) What pursuing?
b) Distinct from critical evaluation.
c) Decision can be deduced logically from free determined nulls, without recost
to social arms, policy or morality
d) Moral judgment cannot be established or defined by rational argument,
evidence or proves.
In view of these various differences as to the meaning of positivism one
needs to be careful classifying any particular writer as positivist or naturalist.
The advent of legal positivism led to the decline of the natural law theory.
This new school of thought that came up at the beginning of the 19 century
is known as legal positivism and it adherent are called positivism.
According to legal positivist law is made by man to govern man Law is
considered as such not because of any moral value but because it is a
command from a competent authority that is from a sovereign or parliament.
According to positivist those rule of law that governs human conduct should
be clearly distinguished from morality.
To the positivists, Law is as it is, but not as it ought to be. This line of
reasoning is the corner stone in the positivist theory of law. The positivist
believes that the norms which prescribe a course of conduct and a sanction
in the event at non compliance are capable of verification that is they can be
ascertained. In other words, it can be determined whether they are true or
false. This is quite different from morality ethical or religious norms which
can be ascertained to be true or false since they merely state what to ought to
be done.
From the above discussion, it can be concluded that the positivist theory of
law is that philosophy of law which propounds that law is nothing else but
what the competent law making authority has declared it to be.
7

Classification of law
Law may be classified in various ways. The four main divisions are as follows:
1)
2)
3)
4)

Criminal and Civil law


Public and Private law
Substantive and Procedural law
Public international law and Private international law.

Criminal law:
This is that law which characterizes certain kind of wrong doing as offences
against the state, not necessarily violating any private right, and punishable by the
state crime is defined as an act of disobedience of the law forbidden under pain of
punishment The punishment for crime ranges from death or imprisonment to
money penalty(Fine) . The Police are public agents who are charged with the duty
to prevent the commission of crimes and to prosecute offenders before a court of
law. What is at stake in criminal law is the liberty of the accused.
Civil law:
Civil law is primarily concern with rights and duties of individuals toward each
other in the society. Civil law includes the following: Law of contract, law of torts,
law of property, land law, law of succession, family law etc. The above are major
component by individuals or a group of individuals whereas criminal law is
enforced on behalf of or in the name of the state. Civil law is sometimes referred to
as private law as compared to public law.
PUBLIC LAW:
Public law is that branch of law which regulates the relationship between
individuals and moral person of public law. That is, it governs the relationship
between the state and local authority such council, publish establishment, and parastatetals. Some branches of public law include constitution law, administrative law,
public finance law etc.
Substantive law:
Substantive law includes rules of law, civil or criminal. Such rules defines a civil
wrong or a criminal offence. Thus murders are criminal offences defined by
8

section 275 of the penal code. Some laws are both substantive and procedural
especially the labour code.
Procedural law:
Procedural law lays down the various, step to be followed before justice can be
rendered in any matter. It lays down the rules governing the manner in which a
right is enforced under civil law, or a crime is prosecuted under criminal law. Thus
a legal action is usually begun by taking out a writ of summons, statement of claim
in civil cases or an arrest warrant and a complaint filed by the complainant in
criminal cases and ends up by the trial and judgment in court followed by
execution of the trial and judgment. Procedural law therefore governs the steps in
the progress of civil actions or criminal prosecution.
Public International law:
This includes rules of law which governs the relations of states interest or among
themselves. Particularly rules of war. Public international law is incompatible with
national sovereignty.
Private international law:
Private International law is sometimes called conflicts of laws. It referee to that
law which is applied in determining what system or state law should be applied by
our courts in cases containing a Foreign element

SOURCES OF LAW
In all the countries of the world, Cameroon not exempted, legislation is by
far the principal expression policy in legal form. Legislation or enacted law is used
as a form of transforming the Cameroonian society through her intervention in
recent times in all areas of social and economic relations.
In Cameroon, enacted laws that apply emanate from two different legislative
bodies that are the National Assembly and Senate House. However, it is proper for
us to discuss on the sources of law in Cameroon in order of seniority or hierarchy.

LEGISLATION AS A SOURCE OF LAW IN CAMEROON


Legislation, other wise know as enacted law, is the principal source of law in
Cameroon. Legislation is law made by formal and express declaration of the rules
of conduct by the legislator or the executive by virtue of the constitution of the
republic. The law thus made is binding its authority cannot be questioned on moral
grounds or a grounds of unreason as lines, bad faith or non compliance with the
general will of the people.
The Cameroonian constitution distinguishes between parliamentary powers
to legislate. In Article 26 and the government power to issue rules and regulation
in implementation of parliamentary legislation in Articles 27
Taking a closer look at articles 26 of the constitution it happens to be the principal
provision that specifies in considerable details the scope of the Cameroon.
Parliaments legislative competence. This article in broad terms identifies six areas
that fall within the reserved legislative domain.
However, the parliamentary power to legislate has been complimented by
governmental power to issue regulation in implementation of such legislation.
Express governmental intervention in the legislation domain under the
Cameroonian constitution is provided for on two different occasions. The first is
provided for the Article 27, which states that matter not reserved to the legislative
power shall come under the jurisdiction of the o the authority empowered to issue
rules and regulation. Effectively, this particular provision gives the government
the right to enact law in its own by way of rules and regulation.
More still, all matters not reserved for parliament under Article 26, the
president of the republic Article 8(5), the prime minister Article 12(3), and a host

10

of other government official share this general power to issued rules and
regulations.
Articles 28 of the constitution also provide avenue for major governmental
intervention. According to this provision parliament may, on matters falling within
its reserved legislative domain empowers the president of the republic to legislate
by way of ordinance for a limited period and for a given purpose. To be valid
such ordinances must be tasted before the bureau of the national assembly and the
senate for purposes of ratification within the time limit lay down by the enabling
law.

THE CONSTITUTION
Since the independence and subsequent re-unification of the former British
Southern Cameroons and French Cameroons, the can be said to have had at least
three different constitution and a series of numerous constitutional amendments.
What can be considered to be the first constitution in reality was the constitution
under which French Cameroon had its independence on the 1 Jan 1960. The
second constitution was simply and amendment of the 1960 constitution of the
French Cameroon in 1961. When the British and French administered parts of the
country were reunited and were styled as the constitution of the federal republic of
Cameroon which ushered in a highly centralized federal system. On the 2nd June
1972, after a referendum, a new unitary constitution was adopted and the name of
the country was changed to the united republic of Cameroon. In

1984, the

appellation united republic was changed to republic what is currently in force


is the 1972 constitution although it was substantially amended in controversial
manner in 1996 with an additional text of 69 Articles replacing the old text of 39
Articles, and the amendments in April 2008 and 2011 respectively .

11

JUDICIAL PRECEDENT
As noted the doctrine of judicial precedent is centered on the operation of
case law as a sources of law and is also refered to by the Latin expression stare
devises which means to stand by what has been decided for the principles to
operate, court structures or jurisdiction must be arranged in a hierarchical order
with the higher court creating precedence that must be followed by the lower
courts. These principles had its origin in English common law to almost every
other jurisdiction of the common law countries including former west Cameroon.
The operation of the principle of precedent is better understood by having a
closer look at its functioning in the English legal system. At the apex of that
system is the House of Lords, (Supreme Court in our case) which is the highest law
making organ both judicially and legislatively. As far as the principle of precedent
is concerned, only its judicial law makings function is of in practice however, the
house of lord (Supreme Court) still considers itself the duty to stand by its own
previous decision and would only depart from them for very urgent policy reason.
The courts within the country operate within a unified but decentralized
court structure at the summit of which is a single supreme court for the whole
country secondly is the country of appeal is the highest court within each of the
Region Constitutes Binding Authority within the Region. Appeals from the appeal
court to the Supreme Court are handled as appeals in the strict sense of the word
and the decision taken by the court are at best only of persuasive authority. To this
extent, judicial precedents remain important sources of law in Anglophone regions,
because of the way as significant as it should have been.

12

LAW REPORTING:
Law reporting happens to be another important source of law. These
because, laws enacted by parliament and some subsidiary legislation are published
in official gazette of the republic of Cameroon. Cameroon has no regular and
efficient system of law reporting.

The most recent attempt the Cameroon

common law report that started in 1997 appears only sporadically. More still is
the SOWEMAC law report.

CUSTOMARY LAW:
In law, custom can be defined as the established pattern of behavior that can
be objectively verified with a particular social setting. A claim can be carried out in
defense of what has always been done and accepted by law. Generally customary
law exists where:o A certain legal practices is observed
o The relevant actors consider it to be law.
An important factor of customary law is that it is usually unwritten, but applies
customary law; it proceeds by way of requiring the custom in issue to be proved in
court as a fact. Such pro of may be tendered by an expert in the custom or person
considered knowledgeable therein.
In Anglophone Cameroon, not every custom or usage was recognized and
enforce as customary law. For instance section 27 (1) Southern Cameroon High
Court Law 1955, provided for recognition and enforcement of only customary law
which is not repugnant to natural solstice equity and good conscience either
directly or by implication, with existing law. The general trend today in Cameroon
is that, customary law has a very limited scope of application.

13

TREATIES
Treaties are an important source of both domestic and international law.
Treaties are agreement under international law entered into by actors in
international law namely, sovereign state and international organization
A treaty may also be know as a protocol, convection agreement, pact, exchange of
letters.
Treaties may become immediately applicable to state which signs it, or in
some cases, they need an implementing text before it becomes so applicable.
Articles 45 of the 1996 Constitution as amended allow treaties to become
immediately applicable on signature. Such a treaty is said to be self executor
since it directly applies nationally. In other jurisdiction, they need national
legislation for implementation as already stated.
A treaty could also be implemented by incorporation in which the statute
simply enacts that the treaty is hence forth part of national law and it may proceed
to reproduce the full text of treaty in a scheduled legislation. Here, the treaty
provision is given the same force as national legislation and courts are expected to
take judicial of notice of the treaty.

THE CONCEPT OF LEGAL PERSONALITY


The word person comes from the Greek word persona which referes to
the mask actors use when acting a particular role. In this light person therefore
referes to the action of legal life. Person here includes an individual or a group of
individual who enjoy certain rights and are equally band. The notion of person is
very important in law as man is the finality of law.

14

A person is a legal concept both permitting right to and imposing duties on


one by law in the field of law. In law two kinds of persons are in principles
recognized are the natural persons and unnatural person (artificial person).
A natural person is a human being capable of performing social, economic
and political activities he is a living being as opposed to an unnatural person such
as a Co-operation.

NATURAL PERSON
This is a human being who has a body and a soul these two components
describes a legal existence of human being in the sense that they should be a body
and life for the natural person natural personality to exist. The human body can be
considered the sit of personality. The essence of personality is that, the person has
a will of his own however certain classes of person like infants, minor and instance
person cannot, in law exercise an independent will but they are never the less
natural persons.
The human body , must be living the law does not define life but, limits
itself to the question living at a prcised movement man can be declared to have
attained the rank of a person the law examines life from two extremes of birth and
death.

THE BEGINNING OF LEGAL PERSONALITY


Not with standing the relevance of the argument that life begins at
conception, law holds that personality begins normally with birth. As long as the
fetus remains in its mother womb it has no independent life. It could only be what
the roman calls part of the mother womb. In reality the choice is much
pragmatic than philosophical because law does not ignore the fact that according to
scientific data life begins well before birth. A clear proof is that law protect life as
15

from it beginning any voluntary interruption of pregnancy is punishable by law


Section 337 of penal code punishes anyone who carries out an abortion.
Cameroon law attaches legal personality to birth such that, we become
subject to law from birth the period of conception can also create an impact in the
determination of legal personality.

BIRTH AS A PRINCIPLE OF LEGAL PERSONALITY


Birth is the stating point of legal personality one of the conditions is that at
birth the child should be born alive or viable

THE CONDITION OF LIFE


The child is said to be alive when at birth, the child is capable of breathing
completely. This condition excludes children who are born already death. The
simple fact of breathing is a conclusion that the child is alive. Proof of life is done
freely that is it can be done by way of testimony or by presence of air in the lungs
as may be revealed by autopsy. The condition is important especially in criminal
law where it helps in determines whether there was infanticide or not.

THE CONDITION OF VIABILITY


This refers to the natural capacity of the body. It requires that, the child
should have all the necessary organs at birth that can enable him / her to solve.
These organs should be sufficiently developed so as to give the child the natural
capacity to live under the Cameroonian law. Viability is only presumed that is to
say a child born alive is only presumed to be viable. In Cameroon today majority
of the cases of non-variability are linked to information during conception or the
abnormality at birth that makes death in evitable.
16

THE END OF LEGAL PERSONALITY


To every beginning is always an end. Legal personality most especially
human being comes to end at death.
DEATH
Medically confirmed, death brings about the end of legal personality. At
death the deceased like the unborn baby and the unconcerned, have no legal right
or duties, and obviously no capacities. A dead body is thus only a legal object or
thing.
However, there is still some form of legal personality after death. Certain
rules and consideration led to the following issue;
1. The deceased will produce legal effect after his death.
2. The respect of corpse and graves which in violation of which is punishable
under the Cameroon criminal procedure code. The law also punishes anyone
who disturbs a funeral ceremony section 273 of the penal code. This issue
shows that the legal personality of the deceased is still protected after his
death.

CO-OPERATE BODY (JURISTIC PERSON OR ARTIFICIAL


PERSON)
By definition this is an entity with a distinct legal personality different or
separate from the individual who compose it. The legal entity has a distinct
existence independent from its member or share holder. It possesses property in its
own name, acquires rights, assumes obligations and responsibilities, signs
contracts and agreements and can sue and be sued.

17

A legal entity also has a name, a domicile, an existence and a unique wealth.
The legal entity is distinct from its members and constitutes a body endowed under
conditions provided by law with a distinct juridical personality which renders it
responsible for its actions and recognizes the shareholders limited liability.

CHARACTERISTIC OF LEGAL PERSONALITY


NAME:
This is the appellation by which a person is known in the society. It is given
at the time of creation in case of artificial person

or birth, under which legal

entities exercise their rights and carry out their obligation. When selecting a name
avoid choosing one that is similar or identical to the name of an existing person or
company.

DOMICILE:
A legal entitys domicile is the site of its head office or in case of a natural
person is the place of his residence. The books of the legal entity must be kept at
this site.

ENJOYMENT AND EXERCISE OF CIVIL RIGHTS


A legal entity has a distinct juridical personality. The legal entity must be
granted full enjoyment of all its civil rights, except in regards to the right to serve
in the capacity of an agent for a principal, to exercise guardianship or curatorship,
an not with standing the fact that it may not be beneficially of a trust for more than
too.

18

SEX
In cases of natural person, the sex must be distinguished a man from a woman.
Section 34 of 1981 ordinance dose not make mention of the sex of a child. Sex is
determined at birth and normally indicated in the birth certificate.

CIVIL RESPONSIBILITY
Civil responsibility is known in the French languages as la responsibilite
civil and some English authors, defines it as delictual liability or a delicticual
obligation. In civil law, obligation resulting from contracts pre-supposes preexisting legal rights or bond between parties. The subject of this topic shall thus be
divided in to:

TORT
Torts are wrongdoings that are done by one party against another. As a result
of the wrongdoing, the injured person may take civil action against the other party.
To simplify this, lets say while walking down the aisle of a grocery store, you slip
on a banana that had fallen from a shelf. You become the plaintiff, or injured party,
and the grocery store is considered the tortfeasor or defendant, the negligent party.
Simply said, you would probably take civil action against the grocery store
to recoup compensation for pain, suffering, medical bills and expenses incurred as
a result of the fall. Negligence is just one tort category. There are three general
categories of torts. Regardless of the tort action, three elements must be present.
Tortfeasor, or defendant, had a duty to act or behave in a certain way.
Plaintiff must prove that the behavior demonstrated by the tortfeasors did not
conform to the duty owed to the plaintiff.
The plaintiff suffered an injury or loss as a result.
19

Because torts are a civil action involving private parties, punishment does
not include a fine or incarceration. The punishment for tortuous act usually
involves restoring the injured party monetarily. Sometimes a court order may force
the tortfeasor to either do or opt do something. We are therefore going to see thinks
like defamation or slander, negligence, nuisance, trespass to the person assault,
battery and false imprisonment.

NEGLIGENCE
Negligence occurs when a party fails to demonstrate the kind of care a
prudent person would take in the same situation and an injury result from the
action or inaction. There are five elements necessary to prove a negligence case.
1. Defendant owed a duty of reasonable care.
2. Defendant did not behave in a reasonable manner to demonstrate care.
3. Plaintiff suffered an injury as a result of the defendants action or inactions.
4. The injury caused actual damages.
5. Proximate cause, defendants actions or inactions were the cause of injury.
While these elements seem repetitive, they are necessary for a negligent case.
Lets see what happens in a comical case involving negligence.
In Byrne v. Boodle (1863) Byrne was walking down the street when a barrel full
of flowers fell out of a window and landed on him, causing him injury. In this case
the flower shop owner owed anyone walking on the side walk below the window a
duty of care. In other words, a flower barrel should not be in a window where it
could fall.
The defendant should have used reasonable care that the flower barrels are
store in an area of the shop where injury to a passer- by could not possibly happen.

20

Byrne was injured as a result of the flower store negligence in storing flower
barrels appropriately, leaving the flower shop solely responsible for this injury.

TRESPASS TO PERSON
Trespass to the person historically involved six separate trespasses: threat,
assault, battery, wounding, mayhem and maiming. Through the evolution of
common law in various jurisdiction, and the codification of common law torts,
most jurisdiction now broadly recognize three trespasses to the person: assault
which is any act of such a nature as excite an apprehension of battery any
intentional and unpermitted contact with the plaintiffs person or any thing
attached to it and practically indentified with it we shall however examine three of
forms of trespass to person.

ASSAULT
Under the statutes of various common law jurisdictions, assault is both a
crime and a tort. Generally, a person commits criminal assault if he purposely,
knowingly, or recklessly inflicts body injury upon another; if he negligently inflicts
bodily injury upon another by means of dangerous weapon; or if through physical
menace, he places another in fear of imminent serious bodily injury.
A person commits tortuous assault when he engages in any act of such a
nature as to excite an apprehension of battery (bodily injury). Consequently in R V
Constanze the court found a stalkers threats could constitute assault. Similarly,
since, given certain conditions, may constitute an assault as well.
Incongruity of a defendants language and action or of a plaintiffs
perception and reality may vitiate an assault claim. In Turberville V Savage, the
defendant reached for his sword and told the plaintiff that if it wares not assize
time, I would not take such language from you. In Common Wealth V. Eyre
21

the defendant shouted if it were not for your gray hair I would tear your heart
out in both cases, the courts held that despite a threatening gesture, the plaintiff
were not in immediate danger. The act most give the plaintiff reasonable
expectation that the defendant is going to use violence.

Battery
Battery is any intentional and unpermitted contact with the plaintiffs
person or anything attached to it and practically identified with it the element of
battery varies by jurisdiction.
Battery under commonwealth precedent is subjected to a four point test to
determine liability:
Directness is the sequence of events connecting initial conduct and the
harmful contact an unbroken series.
Intentional act. Was the harmful contact the conscious object of the
defendant? Did the defendant intend to cause the resulting harm? Though
the necessity of intent remains an integral part of common wealth battery.
Bodily contact was there active (as opposed to passive) contact between the
bodies of the plaintiff and defendant?
Consent did the plaintiff consent to the harmful contact? The on us is on the
defendant to establish sufficient and effective consent.

FALSE IMPRISONMENT
False imprisonment is defined as unlawful obstruction or deprivation of
freedom from restraint of movement in some jurisdictions, false imprisonment is
a tort of strict liability: no intention on the behalf of the defendant is needed, but
others require an intent to cause the elements and confinement need not be lengthy
the restraint must be complete thought the defendant need not resist.
22

The American law institutes restatement of torts distills false imprisonment


liability analysis into four point test.
The defendant intends to confine the plaintiff (this is not necessary in
common wealth jurisdiction)
The plaintiff is conscious of the confinement.
The plaintiff does not consent to the confinement.
The confinement was not other wise privileged.

DEFAMATION
Any intentional, false communication, either written or spoken, that harms a
persons reputation; decrease the respect, regard, or confidence in which a person
is held; or induces disparaging, hostile, or disagreeable opinion or feelings against
a person.
Defamation may be a criminal or civil charge. It encompasses both written
statements, known as libel, and spoken statements called slander. Defamation
being criminal under the Cameroon criminal law is punished by sections 305 of the
penal code.
The probability that a plaintiff will recover damages in a defamations suit
depends largely on whether the plaintiff is a public or private figure in the eyes of
the law.
Defamation constitutes the act of making untrue statements defamatory
statement in printed or broadcast over the media it is libel and if only oral, it is
slander.
Any action for defamation most shows that the defamation was made with
malicious intent and was not just far comment. Slander referes to a malicious, false

23

and defamatory spoken statement or report. While, libel refers to any other form of
communication such as written words or images.

DEFENSES TO DEFAMATION
In order to prove defamation, an injured plaintiff has to show that; the
defendant made a statement (spoken or written)
The statement was false
The defendant published the statement to a third person
That the publication of the false statement injured the plaintiffs reputation,
making the plaintiff entitled to damages.
If a plaintiff is public figure, he also has to show the defendant acted with
actual malice.
Since a defamation claim has so many elements, a defendant in a defamation
case has several opportunities to assert affirmative defenses can be used in a wide
variety of personal injury cases; several are unique to defamation claims.
Another group of defense to claim of defamations include: The statement was made in good faith.
The statement was limited to serve a specific purpose.
The defendant had a duty or interest in communicating the statement : The defendant communication it to some one with a corresponding duty or
interest.

24