Mr Fletcher as the Quintessential Nigerian: Could a More In-Depth Analysis of the Rule in Rylands v Fletcher Reveala Uniquely Nigerian Tort?

• Jurisdiction: South Africa
• Date: 16 August 2019
• Pages: 25-46
• Author: Nwudego N Chinwuba
• Published date: 16 August 2019

MR FLETCHER AS THE QUINTESSENTIAL

NIGERIAN: COULD A MORE IN-DEPTH

ANALYSIS OF THE RULE IN RYLANDS V

FLETCHER REVEAL A UNIQUELY

NIGERIAN TORT?

NWUDEGO N CHINWUBA*

Senior Lecturer and Acting Head, Department of Private and PropertyLaw,

University of Lagos, Nigeria

The rule in Rylands v Fletcher is one fertile area of interaction between the Nigerian

perspective and its English counterpart. The rule as originally formulated followed the

trail of trespass and nuisance as property torts for which liability is strict. However, in

many industrialised common-law jurisdictions, the fate of the rule was effectively

circumscribed when it collided with economic and commercial interests, leaving it in limbo

as neither property nor personal tort. This paper discusses the route by which the rule

arrived at this point in these jurisdictions and its place in Nigerian jurisprudence,

proffering suggestions for its more logical development in Nigeria.

[La règle de l’arrêt Rylands v Fletcher est une zone fertile d’interaction entre la

perspective du Nigeria et son homologue anglais. La règle, comme formulée initialement,

suivi la piste d’intrusion et de nuisance comme les délits sur la propriété, pour lesquels la

responsabilité est stricte. Cependant, dans de nombreux pays industrialisés de common

law, l’application de la règle a été effectivement circonscrite quand elle est entrée en

collision avec les intérêts économiques et commerciaux, en la laissant dans l’incertitude, car

ni la propriété, ni la responsabilitédélictuelle personnelle ont étés retenus satisfaisants. Cet

article traite de la voie par laquelle la règle est arrivé à ce point dans ces pays et sa place

dans la jurisprudence, pour donner des suggestions pour son développement plus logique

au Nigeria.]

Keywords: strict liability,causation in law, judicial development of the law,

procedural technicalities

Introduction

Rylands v Fletcher was decided in the 19th century.

1

Since it is a very old case,

the precedent it laid down might be relevant to a different age, perhaps in

Australia and nearly so in England — but certainly not in Nigeria, for it is a

* PhD. Dr Chinwuba teaches Law of Tort, Principles of Equity, Law of Trust,

Succession and Administration of Estate as well as Gender Studies at undergraduate

level and Comparative Family Law at graduate level. She is the editor of the Journal of

Private and Property Law and, in line with the Laws of the Federation of Nigeria, also in

legal practice. She is a solicitor and advocate of the Supreme Court of Nigeria.

1

Rylands v Fletcher (1868) LR 3 HL 330, [1868] UKHL 1. Available from:

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famous head of liability in respect of which judicial activism is boisterous as

will presently emerge.

2

Rylands v Fletcher decided that anyone who brings in and accumulates

anything with mischievous potential for his own benef‌it on his property,

which is a non-natural use of the property, must keep it in at his own risk, not

at that of his neighbours.

3

Thus, should it escape and cause damage — unless

the person can prove that the escape was an act of God,

4

or due to the action

2

Delivering his judgment in Transco plc v Stockport Metropolitan Borough Council

[2004] 2 AC 1, [2004] 1All ER 589, [2003] UKHL 61, Lord Hoffman noted at para

44: ‘It remains, however, if not to rationalise the law of England, at least to introduce

greater certainty into the concept of natural user which is in issue in this case. In order

to do so, I think it must be frankly acknowledged that little assistance can be obtained

from the kinds of user which Lord Cairns must be assumed to have regarded as

‘‘non-natural’’ in Rylands v Fletcher itself. They are, as Lord Goff of Chieveley said in

the Cambridge Water case [1994] 2 AC 264, 308, ‘‘redolent of a different age’’. So

nothing can be made of the anomaly that one of the illustrations of the rule given by

Blackburn J is cattle trespass. Whatever Blackburn J and Lord Cairns may have meant

by ‘‘natural’’, the law was set on a different course by the opinion of Lord Moulton in

Rickards v Lothian [1913] AC 263 and the question of what is a natural use of land or,

(the converse) a use creating an increased risk, must be judged by contemporary

standards.’ Judgment available from: .publications.parliament.uk/pa/

ld200203/ldjudgmt/jd031119/trans-1.htm>. For the popularity of the rule in

Rylands v Fletcher in Nigeria, see Umudje v Shell BP PetroleumDevelopment Co of Nigeria

Ltd (1975) 9-11 SC 155 and NEPA v Alli (1992) 8 NWLR (Pt 259) 279. See also

Oladehin v Continental Textile Mills Ltd [1978] NSCC 88; National Oil & Chemical

Marketing Plc v Kamardeen Leye Adewusi&3Ors(2008)7 CLRN 64; Shell Development

Corporation (Nig) Ltd v Joel Amaro & 12 Ors (2000) 10 NWLR (Pt 675) 248; Shell

Development Corporation (Nig) Ltd v Graham Otoko & 6 Ors (1990) 6 NWLR (Pt 159)

693; National Electricity Power Authority v Akpata [1991] 2 NWLR (Pt 173) 536.

3

While there is an overlap on this with liability for animals or f‌ire, at common

law and by statute (based on received English law) different considerations have

always guided the keeper of animals and escape from f‌ire. On liability for animals,

better known as cattle trespass or scienter action, see Kodilinye, Gilbert & Aluko,

Oluwole (1999) The Nigerian Law of Torts (2 ed) 126; Daryani v Njoku [1965] 2 All

NLR 53; Uzoahia v Atu & Ors [1975] East Central State of Nigeria LR 139; for f‌ire,

see Filliter v Phippard (1847) 11 KB 347; Vaughan v Menlove (1837) 3 Bing NC 468;

Mason v Levy Auto Parts of England Ltd [1967] 2 QB 530; Mulholland & Tedd, Ltd v

Baker [1939] 3 KBD 253; Fires Prevention (Metropolis) Act (14 Geo 3 c 78). See

further Rogers, WVH (2010) Winf‌ield and Jolowicz on Tort (18 ed) 789; Deakin,

Simon, Johnston, Angus & Markesinis, Basil (2007) Markesinis and Deakin’s Tort Law

(6 ed) chapters 16–17; B Adefunke v E Gamra & N Osunde [1957] WRNLR 182;

McNeil, JL & Rains, R (1965) Nigerian Cases and Statutes on Contract and Tort301.

4

Carstairs v Taylor(1871) LR 6 Ex 217, 221; Nicholls v Marsland (1876) LR 6 Ex D

1; Greenock Corp v Caledonian Ry [1917]AC 556 — these defences were approved by

the Nigerian Supreme Court in Umudje v Shell BP Petroleum Development Co of Nigeria

Limited (1975) 9-11 SC 155 at 172–173. See further Hall, CG (1993) ‘An Unsearch-

able Providence: The Lawyer’s Concept of Act of God’13(2) Oxford Journal of Legal

Studies 227; Waite, AJ (2006) ‘Deconstructing the Rule in Rylands v Fletcher’ 18(3)

Journal of Environmental Law 423 at 437; Rogers, WVH (2010) Winf‌ieldand Jolowicz on

Tort(18 ed) 778–786.

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