Tort and Crime Distinguished. Crime is nothing but doing something wrong. Specifically, in this case, the impact is on the society in general. There are special cases or acts which are a crime under the state legal system. In case, a person does any of the act, the law will take necessary decisions of punishment in the court.
More so, the proceedings takes place in the criminal court iof law. Crimes which go against laws are already set for the protection of society. Moreover, it keeps peace ensuring everyone can have the right to live in a society, free of crimes.
Crime is an illegal act for the following reasons:
- Crime goes against existing laws set-up in society.
- Crime affects the standard of living of law-abiding citizens who wish to live peacefully in society.
- Lastly, a crime is an intentional act contravening human fundamental rights.
The main purpose of the criminal law is to protect the interests of the public at large by punishing those found guilty of crimes, generally by means of imprisonment or fines, and it is those types of conduct which are most detrimental to society and to the public welfare which are treated as criminal.
A conviction for is obtained by means of criminal prosecution, which is usually instituted by the Attorney General of the State or the state through the agency of the police.
A tort, on the other hand, is purely civil wrong which gives rise to civil proceedings, the purpose of such proceedings being not to punish wrongdoers for the protection of the public at large, but to give the individual plaintiff compensation for the damage which he has suffered as a result of the defendant’s wrongful conduct.
However, some act could be a crime and tort at same time, for example: assault, false imprisonment and defamation are both crimes and torts. If A steals B’s bicycle, he will be guilty of stealing (a criminal offence), and at same time be liable to B for tort of conversion.
Again, is A willfully damages B’s goods he is liable for the crime of malicious damage to property and for the tort of trespass to chattels. The effect in such cases is that the civil and criminal remedies are not alternative but concurrent, each being independent of the other.
The wrongdoer may be punished by imprisonment or fine, and he may also be compelled in a civil action for tort to pay damages to the injured person by way of compensation. There is however, a rule known as the rule in Smith V. Selwyne, under which , if the wrongful act is a felony, no action in tort can be brought against the defendant until he has been prosecuted for the felony, or a reasonable excuse has been shown for his not having been prosecuted. See the case of Nwankwo V. Ajaegbu (1978) 2 L.R.N. 230, at p. 235.
However, in view of recent decision of the courts on the rule in Smith V. Selwyn the fact that a criminal case is pending on similar facts may not be an obstacle to the civil suit that may be instituted on the similar facts. This rule has now been described by several eminent Judges as being “age-worn”, “archaic” and “anachronistic”.
In Rose V. Ford (1937) 3 AER pg. 359 at 371 Lord Wright said:
But however limited, the rule that the plaintiff must first prosecute in a case of felony is an anachronism, now that the police prosecute or are assumed to prosecute in every case of felony. Nor do I see how it can ever be alleged in any case where a person has been killed by negligence in driving a motor car or by any other negligence that the act is felonious unless and until the jury has so decided no pleader I imagine go out of his way to allege felonious negligence.
In Tika Tore Ltd V. Umar (1968) 2 All NLR page 107 at 110 the court did not follow the rule in Smith V. Selwyn by refusing to stay proceeding in the suit pending the completion of the criminal case. The court in Panthinsan V. Edet (1968) 2 All NRL page 135 refused to stay proceeding in the suit pending the completion of the criminal case.
Finally, an important distinction between tort and crime is that, to succeed in a criminal trial, the prosecution must prove its case beyond reasonable doubt, whereas in action in tort the plaintiff need only prove his case upon a balance of probabilities. It is therefore easier for a plaintiff to succeed in tort than for the prosecution to secure a conviction in crime. See the case of Lawal V. Deputy Suprintendent of police (1975) W.S.C.A 72)
Tort is a civil wrong involving a breach of duty fixed by the law, such duty being owed to persons generally and its breach being redressable primarily by an action for damages.
The main aim of the law of tort is to compensate persons harmed by the wrongful conduct of others, and the substantive law of torts consists of the rules and principles which have been developed to determine when the law will and when it will not grant redress for damage suffered.
However, such damages takes different forms such as; physical injury to persons; physical damage to property; injury to reputation; and damage to economic interests.
The law of torts requires every person not to cause harm to others in certain situations, and if harm is caused the victim is entitled to sue the wrongdoer for damages by way of compensation.
However, monetary damages is thus the normal remedy for a tort, but there is another important remedy, the injunction, which is a court order forbidding the defendant from doing or continuing to do a wrongful act.
Whether the plaintiff is claiming damages or an injunction, he must first prove that the defendant has committed a tort, for the law of torts does not cover every type of harm caused by one person to another.
Tort and Contract
The main distinction between tort and contract is that in tort the duties of the parties are primarily fixed by law, whereas in contract they are fixed by the parties themselves. In other word, contractual duties arise from agreement between the parties; tortuous duties are created by operation of law independently of the consent of the parties.
Secondly, the duties owed by two contracting parties towards one another are frequently not duties which they expressly agreed upon but obligations which the law implies, such as the terms implied under the Sale of Goods Law 1958, or under the Hire Purchaser Act 1965.
Conversely, some duties in tort can be varied by agreement, for example, the duties owed by the occupier of premises to his visitors; and liability in tort can be excluded altogether by consent (the doctrine of non fit injuria)
Sometimes a wrongful act may be both a tort and a breach of contract, for example:
- If A has contracted to transport B’s goods, and due to A’s negligence the goods are lost or damaged A will be liable to B for breach of the contract of carriage and for the tort of negligence.
- A dentist who negligently causes injury in the course of extracting a tooth may be liable to the patient both for breach of an implied term in his contract with the patient to take reasonable care, and for the tort of negligence.
Lastly, there are some areas of overlap between contract and tort: for instance, a victim of fraudulent misrepresentation in may sue for the tort of deceit, and a victim of negligent misrepresentation may sue for the tort of negligence.
Also, there are some concepts, which are common to both contract and tort, for example, the concept of remoteness of damage and of agency.
Tort and breach of trust – Tort and Crime Distinguished
Liability in tort and liability for breach of trust are fundamentally different in that whereas tort is a common law concept, the trust is purely equitable creation and was never recognized by the common law. A trust arises where a property is given to trustees to hold on behalf of certain beneficiaries, and a breach of trust will occur if the trustees deal with the property in an unauthorized way,.
If, for example, the trustees misappropriate the trust property, the beneficiaries may bring an action against them to recover the property or its value.
This is quite different from damages in tort, since a claim for breach of trust is liquidated and is measured by the loss caused to the trust estate, whereas a claim for damages in tort is unliquidated. Furthermore, a claim for breach of trust is not properly regarded as a claim for damages at all, for damages is a purely common law concept, and trusts are equitable only. It is thus appropriate to regard the concept of breach of trust as belonging to an entirely separate system of law and having no connection with tort.
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