Common Law World Review

The decision of the Supreme Court of Nigeria in Benjamin v Kalio has been praised. However, the route taken by the Court to do justice and its implication have never been considered. This article examines the route through which the Supreme Court of Nigeria arrived at justice in this case. The article finds that the Supreme Court of Nigeria overruled its previous judgments by holding that unregistered land instruments could be tendered in evidence because section 20 of the Land Instruments (Preparation and Registration) Law of Rivers State is unconstitutional for not being within the legislative competence of States. The article argues that this is a simplistic route to justice having not taken cognisance of the Nigerian federalism and the concepts of existing and deemed laws with the probable consequence of rendering such laws on presumptions as section 30 of the Criminal Code and section 50 of the Penal Code null and void. The article concludes that this tends to constitute a pitfall.

In considering the protection of fundamental rights in Hong Kong, the Basic Law and the Bill of Rights Ordinance (Cap 383) (BORO) tend to be the dual focus. However, common law principles protective of fundamental rights continue to apply. These include principles of statutory interpretation such as the principle of legality (the presumption that general or ambiguous words in legislation are insufficient to interfere with certain common law rights) and the presumption that legislation is to be interpreted consistently with international treaties. This article considers the role of these common law interpretive principles in Hong Kong, and, in particular, the scope for their application in light of the Basic Law and the BORO. It concludes that the protection of fundamental rights in Hong Kong will continue to focus on the Basic Law and the BORO for so long as the current constitutional arrangements persist. However, the courts ought to take care to pay due regard to the relevant common law interpretive principles, including the stringency of the test of necessary implication where a statutory interference with rights is not express, and the potential for the International Covenant on Economic, Social and Cultural Rights to be relevant to statutory interpretation.

The common law on vicarious liability is unsatisfactory because the doctrine is couched at such a high level of generality that it cannot yield predictable results when applied to a given fact situation. This paper is an attempt to inject some precision into the doctrine. It examines and rejects three justifications for the doctrine: effective compensation/risk spreading, deterrence and certain theories related to quid pro quo. It then proposes the most suitable justification for the doctrine: vicarious liability is imposed because and when the defendant, by placing the tortfeasor in the position in its organisation that it did with that position's accompanying privileges and demands, had created or significantly enhanced the risk of the claimant’s injury. Three implications follow from this justification: (1) there is no vicarious liability for the wrongful acts of independent contractors; (2) agency reasoning should be rejected; and (3) we should stop using the phrase ‘enterprise-risk approach’.