Sunday, March 14, 2010
Thursday, March 11, 2010
THE POSITION OF THE LAW ON LOST AND FOUND ITEM.
A real life situation was created whereby a man lost an old and well cherished diamond chain and pendant worth several sum of dollars. The lost item in question was an object of inheritance from his great grandmother which got missing under an unexplainable circumstance. The said chattel may be regarded as of inestimable value to the man.
Several years later, an old farmer who was hired to work on a farm and while in the course of ground digging suddenly discovered and find the aforementioned lost jewelry to his astonishment.
The question now arose as to whom among the three person is the rightful owner of the lost and found item in question?
While some school of taught are of the opinion that the farmer may exercise an exclusive right of possession vice a vize ownership claim in respect of the lost and item, some other people are also of the opinion that the owner of the farm who has engaged the service of the farmer in the first instance is the rightful and legal owner based on the legal principle of “quid quid plantator, solo solo cedit” which literarily mean that “ He who owns the land owns whatever that is attached to the said land’’
But the better position of the law with regards to this dicey situation has always been that a finder of a lost piece of item whether found lying on the ground surface or embedded under the soil can rightly maintain a rightful claim of owner in respect of such lost item to the exclusion of any other person on earth unless and until the real owner emerged with a better proof of ownership title as against the said finder.
Several years later, an old farmer who was hired to work on a farm and while in the course of ground digging suddenly discovered and find the aforementioned lost jewelry to his astonishment.
The question now arose as to whom among the three person is the rightful owner of the lost and found item in question?
While some school of taught are of the opinion that the farmer may exercise an exclusive right of possession vice a vize ownership claim in respect of the lost and item, some other people are also of the opinion that the owner of the farm who has engaged the service of the farmer in the first instance is the rightful and legal owner based on the legal principle of “quid quid plantator, solo solo cedit” which literarily mean that “ He who owns the land owns whatever that is attached to the said land’’
But the better position of the law with regards to this dicey situation has always been that a finder of a lost piece of item whether found lying on the ground surface or embedded under the soil can rightly maintain a rightful claim of owner in respect of such lost item to the exclusion of any other person on earth unless and until the real owner emerged with a better proof of ownership title as against the said finder.
Sunday, March 7, 2010
Wednesday, March 3, 2010
TRESPASS
Trespass has been variously defined as an unlawful interference with one’s person, property or rights.
At common law , trespass was a form of action brought to recover damages or monetary compensation for any injury to one’s person or property or relationship with one another . In other words, any unauthorized intrusion or invasion of private premises or land of another.
Trespass to the person comprises three torts (legal injury) namely:-
(1) Assault , (2) battery, (3) false Imprisonment. All these are actionable per se i.e without the need to prove actual damage. They exist to protect the individual’s right to personal liberty, security, and dignity.
ESSENTIAL INGREDIENTS OF TRESPASS
Assault consists of any act which puts the victim in fear of a potential attack e.g where an assailant approaches menacingly with a clenched fist, Knife , firearm or any other weapon . It is sufficient for liability that a reasonable man would have been afraid in the circumstances (an objective not a subjective test ) It is not mandatory that the victim should be actually strucked (which would otherwise amount to battery) the legal injury which the law seeks to prevent here is apprehension of mental anxiety.
Battery on the other hand is the direct application of force to the plaintiff’s body for example, by shooting or striking him, throwing stones at him, spitting at him or setting a dog upon him.
Battery generally connote a hostile act but sometime may not be so for example, it is a battery to kiss a woman against her will, or holding a person’s hand in the cause of an unlawful arrest or taking his finger print unlawfully.
False Imprisonment In law connote any wrongful physical restrain of a person. It is not limited to merely locking a man up in prison but equally involve any restrain upon his person which prevents him from leaving the place or venue where he is.
This tort will not be committed unless the victim’s freedom of movement in any direction is restricted and there is no reasonable avenue for egress.
False imprisonment usually involve an element of physical force against the victim, but force is not necessarily an ingredient to be proved , the use of authority is sufficient for instance, where a police officer wrongfully ordered a person to follow him to the station for questioning , such an officer may be said to have committed the tort of false imprisonment.
DEFENCES TO TRESPASS
(1) Self – defence :- An Assault or battery is justified if committed in self- defence or in self – defence of another person who was attacked by an assailant.
(2) Defence Of Property :- An assault or Battery is justified if committed in defence of the defendant’s own property ( whether land or Chattels) or of property which the defendant is defending as agent of the owner . But the forced used most be no more than necessary i.e must be proportional to that used by the assailant .
About the Author EMMANUEL BADA
IKEJA, LAGOS, NIGERIA I am an Attorney-at-law, Solicitor, Chartered Mediator and Conciliator,Motivational Speaker,Consultant on Personal Development and Leadership Training and skill acquisition , an extrovert, my philosophy about life is rendering gratuitous service to humanity and touching lives positively.
At common law , trespass was a form of action brought to recover damages or monetary compensation for any injury to one’s person or property or relationship with one another . In other words, any unauthorized intrusion or invasion of private premises or land of another.
Trespass to the person comprises three torts (legal injury) namely:-
(1) Assault , (2) battery, (3) false Imprisonment. All these are actionable per se i.e without the need to prove actual damage. They exist to protect the individual’s right to personal liberty, security, and dignity.
ESSENTIAL INGREDIENTS OF TRESPASS
Assault consists of any act which puts the victim in fear of a potential attack e.g where an assailant approaches menacingly with a clenched fist, Knife , firearm or any other weapon . It is sufficient for liability that a reasonable man would have been afraid in the circumstances (an objective not a subjective test ) It is not mandatory that the victim should be actually strucked (which would otherwise amount to battery) the legal injury which the law seeks to prevent here is apprehension of mental anxiety.
Battery on the other hand is the direct application of force to the plaintiff’s body for example, by shooting or striking him, throwing stones at him, spitting at him or setting a dog upon him.
Battery generally connote a hostile act but sometime may not be so for example, it is a battery to kiss a woman against her will, or holding a person’s hand in the cause of an unlawful arrest or taking his finger print unlawfully.
False Imprisonment In law connote any wrongful physical restrain of a person. It is not limited to merely locking a man up in prison but equally involve any restrain upon his person which prevents him from leaving the place or venue where he is.
This tort will not be committed unless the victim’s freedom of movement in any direction is restricted and there is no reasonable avenue for egress.
False imprisonment usually involve an element of physical force against the victim, but force is not necessarily an ingredient to be proved , the use of authority is sufficient for instance, where a police officer wrongfully ordered a person to follow him to the station for questioning , such an officer may be said to have committed the tort of false imprisonment.
DEFENCES TO TRESPASS
(1) Self – defence :- An Assault or battery is justified if committed in self- defence or in self – defence of another person who was attacked by an assailant.
(2) Defence Of Property :- An assault or Battery is justified if committed in defence of the defendant’s own property ( whether land or Chattels) or of property which the defendant is defending as agent of the owner . But the forced used most be no more than necessary i.e must be proportional to that used by the assailant .
About the Author EMMANUEL BADA
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