The genesis of Torts in Uganda.

By Julius Bwesigye1

THE HISTORY OF TORTS.

A tort is defined by Winifield and Jolowicz as a civil wrong for which the remedy
is a common law action for un liquidated and which is not exclusively the breach
of contract trust or any other equitable obligations. The development of the law is
closely related to the development of society. In society people organize
themselves in different ways. They have institutions that assist in the running of
the society.

GENTILE SOCIETY.
This society was organized on the basis of clans and produced on a collective
basis. This was in response to the fact that they had limited skills and instruments
of production so they had to work together to sustain themselves. They lived in a
natural economy as opposed to a market economy. Today human beings have
developed to a level when they can produce their own means of production and can
manipulate nature to their advantage. The stages of development were savagery
where they had no skills at all and just appropriated nature to survive. The middle
stage of savagery is marked by the discovery of fire, then the club and spear. In the
upper stage of savagery they made bows and arrows out of polished stone and
hunting became established. In the lower stage of barbarism there was pottery,
weaving and the domestication of animals/agriculture. In the middle stage there
was introduction of bronze tools and weapons. It was then that division of labour
began. In the upper stage of barbarism there was iron smelting and this led to
large-scale agriculture. It also increased the effectiveness in war. The final stage
was civilisation. At each of these stages productivity of labour developed and there
was development of skills. Because of the collectiveness of the production political
organisation also became collectivist. It was a classless society based on kinship
ties. In many societies the clans were totemic. They were governed by taboos as a
means of social regulation. They were cohesive and conflict was minimal. They
were democratic and had no laws because they had no government to institute the
laws. Many of the civil wrongs that today make up the corpus of tort law were
nonexistent.

1
An educationist, entrepreneur and Second year law student at Makerere University.

Nature, history and introduction of torts in Uganda by Julius Bwesigye. Page 1

 SLAVE SOCIETY.
These were differentiated in classes and were organized in states. When people
became able to produce in surplus it became possible to sustain a class of persons
who were not producing anything. The barbery stage then fades into civilisation.
They had leisure and time to think which led to discoveries like writing. It was the
persons who learnt to write who became philosophers. As a result of the fact that
they were not engaged in production their philosophies were idealist. They were
aimed at protecting their status of life. They regarded mind and spirit as primary
and matter and life as secondary. To them thinking was primary and labour was
secondary. This resulted in classes as the philosophers started appropriating the
wealth of those who produced under slavery. Those who owned property became
the minority with no way of directly asserting their will on the majority. The only
way they could do this was through the state as an instrument of coercion. It is
important to note that not all societies were slave societies, in places like Africa
there was a mixture. The mode of production was slave labour which was owned
by the minority in society. They had private means of production like land owned
by the minority free men on which the slaves worked. The state had a number of
instruments like the prisons to impose the will of the minority on the majority. Law
developed as an aspect of the state to sanctify the unfair relations. It bound the
slaves to work for the masters. The state and the use of coercion were not
sufficient so they developed ideology to back it up. This was in the sense of false
consciousness. It was against this background that the philosophies thrived. This
ideology later achieved social prejudice as a way of maintaining the supremacy of
the minority. Roman law had already begun to develop delicit that was the basis of
tort. It began to reflect the interests of society, it promoted inequality in society.
90% of society had no rights and no remedies for injuries to person and property.
Whichever law developed was for the benefit addressed the 10% who had property
and rights. These could get remedies if they were injured or their property rights
were violated. The law that was produced was a class law designed for a class of
persons. The slaves could only benefit from incidental protection. Today the law
plays an ideological role. Unlike during the period of slave society the law is not
open about the inequality it perpetuates. The issues of human rights and principles
of equality before the law it perpetuates the false notion that people are actually
equal before the law and generally in society. Eventually slave societies collapsed
because the empires had become unsustainable. The slave population became too
small to sustain the majority who were not participating in production2. As the
slave were exploited trade developed in the Roman Empire. The slaves had
therefore to sustain all the trading partners. The Roman got slaves from conquest

2
Political economy of Imperialism.

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but as trade developed war and conquest ceased to be viable sources of slave
labour. This inevitably led to a decline in the slave population. The rate of
reproduction among the slaves was also very low because of the high proportion of
males. Later slaves could be freed which further depleted the population of slave
labour. This made the large-scale agricultural estates unsustainable. The Romans
were overrun by the Barbarians. It was out of the ashes of the slave system that the
feudal mode of production evolved in Europe. The large-scale agricultural units
collapsed in to smaller units. The slaves scattered and sought patrons and lived in
what came to be called colonii. They lived together and shared common facilities.
It was out of these societies that the feudal system developed.

FEUDAL SOCIETIES. 800AD to 1450AD.

When the Roman Empire collapsed all urban life collapsed and people reverted
back to rural conditions. This was when the common law system began to emerge
forming the foundation of today’s legal system. The economic base was feudal
land ownership (serfdom). The serfs were the direct producers and were tied to the
land. Production was agricultural and the water wheel, harness, and the plough
were the main instruments of production. It was possible to use animals as it was
mainly small scale agriculture. There was scattered handcraft industry. It was a
natural economy and they produced use values for consumption. The main
economic unit was the manor which developed from the colonii. There were
landlords who owned large estates of land occupied by serfs who produced the
means of production. The serf produced for his own sustenance and also for the
landlord. They engaged in surplus labour. There was also common land for
grazing. Exploitation here was based on land ownership and the landlords
extracted the surplus from the serfs in the foam of rent for the use of the land. This
rent was payable in various forms including labour or produce. Guilds also later
developed and were under guild master who had apprentices and journeymen
working for them. Guilds engaged in pottery, weaving and blacksmithing. In the
countryside they had the cottage industry doing the same. The feudal state was part
of the economic structure. Here there was also the hegemony of the church. The
church was the largest land owner and had a lot of political power. The feudal state
was highly decentralized with the feudal lords wielding a lot of power. The
monarchy was the first among equals and though the serfs were not slaves in the
sense of being owned by the landlords they were tied to the land by law.

DEVELOPMENTS OF THE LAW IN THIS PERIOD.

Feudal exploitation depended on land ownership. The law therefore was
preoccupied with protecting interests in land. This was opposed by the Magna
Carta of 1215 which was in a sense an early version of a bill of rights. It tried to
Nature, history and introduction of torts in Uganda by Julius Bwesigye. Page 3
protect the rights of the serfs. The developed writs which were in a sense the
causes of action. A writ is a way of starting a legal action and covered various
forms of conduct which was considered to be actionable. If no writ covered a
particular situation then the person had no remedy in law. The la w of torts as it
exists did not exist until about 1280. Court action could be begun in two ways: by
the individual (appeal) and by the state (indictment). Note the strong language of
criminal summons as opposed to the “humble prayer” of a plaintiff in civil actions
especially petitions. All cases were regarded as criminal and there was no
demarcation as we have it today. Private actions were risky because they could be
tried by battle and if one lost they could lose their property or even be sent to jail
so the indictment was very popular. Towards the 13th century the writ of trespass
was introduced and it was the foundation of all torts and it was both civil and
criminal. It was designed to address serious breaches of the peace. Trespass was
both civil and criminal because if successful it ended in the compensation of the
plaintiff and punishment for the defendant. As society developed there arose
situations where trespass was not a direct consequence of the actions of the
defendant and could not be remedied under the traditional writ of trespass. The
courts created a writ analogous to trespass to remedy consequential trespass i.e.
trespass on the case. Trespass on the case is what developed in to negligence to
remedy consequential harm. In its early stages it was limited to persons carrying on
common callings e.g. innkeepers, blacksmiths, journeymen and common carriers.
The law further developed to apply to a person not because they pursued a
common calling but because they undertook to perform something. This was called
assumpsit and laid the foundation for the law of contract. Case expanded to cover
other feudal interests like the writ of debt, the writ of detinue and account. Detinue
was the wrongful detention of a chattel and was usually against a bailee. The writ
of debt was used to recover money, the price of goods, money from a surety,
money promised under a sealed document and statutory penalties. Covenant dealt
with undertakings under seal. The writ of account dealt with accountability. It was
usually brought by feudal lords against baillees who collected for them rent from
their estates. What is today called assault, battery and theft were covered by
trespass because there was infliction of physical injury. When there was trespass
intention was immaterial. False imprisonment was handled as a battery since there
was application of force directly. This was aimed at protecting the rights of
mobility granted by the Magna Carta. Malicious prosecution was not distinguished
from false imprisonment but when it was it was called a writ of conspiracy. The
writ of nuisance was designed to protect immovable property from interference
especially land since it was the most important form of property. The writ of
defamation begaun as a criminal case. It was not available for the peasants in the
beginning since they did not have a reputation to protect. It was aimed at protecting
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the state from ridicule but even private individuals could benefit from its
protection. The manorial courts had jurisdiction to hear these cases until they were
taken over by the king’s courts. The court of Star Chamber had exclusive
jurisdiction to hear defamation cases. The king’s court punished defamation and
the ecclesiastical courts punished slander. The general characteristics of tort
liability. · In its initial development, it was criminal but later took on a quasi-
criminal nature. · When the common law begun to develop civil liability it was
based on an act causing harm. it had to fit in a given writ to be remedied. Writs
were designed to address particular interests and issues of serfs were not
considered. · It did not make a distinction between careless, intentional and
accidental wrongs. It was in the nature of strict liability.

The period of mercantilism 1450 -1700.

This was a period of great change. In this period feudalism was fading and
capitalism was taking centre stage. It was marked by the rise of towns and
merchant capital. Trade developed out of the expansion of guilds. The merchant
class emerged and became differentiated from the guilds. Trade towns developed
based on fairs. Trade fairs were temporary markets. It was still a natural economy
and trade could not have permanence. As the fairs became permanent trade towns
developed. The merchants then begun to penetrate the feudal economy. · Serfs and
peasants engaged in the cottage industry and the merchants supplied them with the
materials for production and bought the products from them. · The merchants
begun selling luxuries to the feudal lords and money penetrated the feudal
economy. There were natural limits to feudal exploitation but when money came in
the nobility desired the luxuries supplied by the merchants and the level of
exploitation escalated. This led to the peasant riots which rocked Europe during
this period. The merchant class was growing much richer and superseded the
nobility. The feudal arrangement was not compatible with a money economy so the
lords begun to ask for money rent which made the serfs free to work elsewhere to
earn the money to pay the lords. They then lost their ties with the land and became
free peasants. This infiltration of money into the feudal economy led to the
development of an exchange economy which enriched the merchants at the
expense of the nobility. The people in the country side ceased to be self-sufficient
and the feudal economy died. 2. The development of manufactories. In the
beginning merchants supplied raw materials to the cottage industry and bought
products from them. They later consolidated the manufactories in to manufactories.
They were different from the modern factories in the sense that there was no
division of labour, the direct producers owned the means of production and there
was no wage labour. Manufactories led to commodity production that facilitated
the exchange economy. Enclosure movement. This completed the process in that
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there was an unprecedented expansion in the manufacture and trade in wool, which
was highly priced. Capitalist farmers engaged in the production of wool in the
countryside. Because of the high prices of wool, the capitalist farmers enclosed the
countryside to make sheep rands. The free peasants were uprooted from the
countryside and became labour. It led to the emergence of a labour market in the
urban areas. This led to a larger market, which facilitated an international
economy. The enclosure movement went hand in hand with the disruption of the
feudal system and affected the church as the largest landowner. The transformation
in feudalism also took the foam of a reformation in the church. International
trade. Trade in the beginning was international and occasional in nature. When
international trade begun in Europe it took the form of plunder and brigandry. The
exploration of a route to the east begun in search for silver and gold as the mines in
Europe were exhausted. Silver and gold were used as money and thus were very
important. This led to the establishment of the triangular trade. Because of the
expansion in trade the merchants became very powerful. The merchants begun to
combine with the monarchy in the state. The monarchy sold charters tot trade to
the merchants and the merchants extended credit to the lords that led to the
accumulation of the public debts. They established a central bank to take care of
the public debt. This weakened the feudal nobility and the merchants rose to
power. The feudal kings relied on the merchants and abandoned the nobility. This
led to the emergence of despots because the nobility could not control the kings
and yet the merchants also did not have the power or the goodwill to restrain the
kings. This period ends when industrial capital is coming in leading to revolutions.
Developments in the law. Economic activity became more and more socialized. An
exchange economy developed over the natural economy. The common law begins
to absorb principles of law developed by the merchants ( lex macartoria). The
merchants moved from community to community, had their own laws and their
own courts called fair courts or dust courts to solve their conflicts in trade. The
common law courts did not handle issues related to commercial transactions which
were alien to the natural economy. The merchant law principles developed
separately and applied throughout Europe. As trade developed the merchant courts
begun to merge with the common law courts. The common law courts then became
able to adjudicate in commercial transactions. This strengthened the bond between
the nobility and the merchants. The law of contract was firmly established. The law
of tort also developed to cover new areas for example transport and injuries in
manufactories. This period witnessed important political developments. The
overthrow of feudalism was manifested in the reformation by Henry VIII. The
church as a powerful ally of the state was overthrown. There were also bourgeois
revolutions to establish constitutional arrangements. The law of tort developed to
cover malicious imprisonment, defamation etc. owing to the fact that this was the
Nature, history and introduction of torts in Uganda by Julius Bwesigye. Page 6
first exchange economy it produced principles suited to the exchange economy.
Trover was developed to cover situations where the defendant was willing to
return a chattel but had either willingly or wrongfully damaged it or parted with
possession of it. The essence of the action was not wrongful detention but failure to
return it,. This is what is called conversion to day. Mis-feasance. This was
intended to cover breach of contract. The common law developed a mature concept
of contract. They were not conversant with commercial transactions and were not
sure which type of contract was enforceable and which ones were not so they
developed the concept of consideration in order to deal with the question of
enforceability. Detinue at first was limited to bailment but was later extended to
cover situations where the defendant refused to return a chattel when it was
demanded by the plaintiff. The mobility of chattels had led to a transformation in
the law. Debt was also extended to cover a wider variety of debts. Liability for
dangerous things was also established. An action on the case could be brought
against someone who engaged I dangerous projects on his land irrespective of
intention to cause damage. Trespass at that time did not have regard to questions of
intent or accident. Because of the rising populations injuries were more intentional
than not soothe concept of strict liability developed to address such situations. It
was adjusted to cover negligence. Defamation continues as a crime and includes
sedition. It was crucial for the survival of the state because of the upheavals that
rocked Europe at the time. The law of defamation and sedition were perfected at
this time. In this period printing had begun and there was a need to control
publication. Defamation had begun in the 16th century as a common law action. A
person could bring an action for defamation. Ecclesiastical courts handled the less
serious forms of defamation so there was competition with the kings courts.
However, the church did not award damages as the common law courts did. As the
tort developed the essence of the case became damage and not the words. The
feudal nobility were prone to gambling and dueling. They did not understand the
action so they turned it into a way of making money. The courts were forced to
formulate the action in more precise terms. I.e. · Truth was a defense. One who
spoke the truth was not liable. · There must be publication to a third party and this
was intended to exclude mere insults. · An action for defamation does not survive a
plaintiff for the benefit of his estate. · There was a distinction between libel and
slander. Malicious prosecution. In 1589 a writ of conspiracy had been established.
Conspiracy became the action for malicious prosecution. The essence of the action
became damages and not the conspiracy. It covered issuing of malicious warrants
against people. Lovett V Faulkner. In this case the court held that the action could
not lie against one who reported a case of treason. In a later case it was reversed
and the court held that when one brought a case of treason against another
maliciously they were liable in malicious prosecution. Walter V Smith In the 1858
Nature, history and introduction of torts in Uganda by Julius Bwesigye. Page 7
case of Knight V King the court held that the essence of the action was not the
conspiracy and even one person could be sued. · In Saville V Robert, the court held
that the plaintiff must have suffered damage to his name or property in an action
for malicious prosecution. · There had to be express malice and iniquity. · The
ground of the action was not conspiracy and it could be brought against a single
person. · No action could lie in a malicious civil action because the court would
award damages to the successful party. · The proceedings relied on must have been
terminated in favour of the plaintiff. In Weaver v Ward, court held that tortfeasors
cannot invoke incapacity as a defence. In the case of thorns(Hulle v Oryngy)
Court opined with distinction that if a person damages the property of another
man, there is a tort. Justice Pigot as he was by then averred that '....if a man has
a fish pond in his manor and he empties the water out of the pond to take the
fish and the water floods my land I shall have a good action in tort' emphasis is
mine.

INDUSTRIAL CAPITALISM 1700 – 1870.

This period was distinct from those before it because it was characterized by
commodity production based on wage labour on the one hand and private
ownership of means of production on the other. Production is by machinery and
factory system on the basis of competition. The social basis for the capitalistic
production had been laid in the period of mercantilism through primitive
accumulation. This was done through unequal exchange, brigandage, long distance
trade etc. The technical developments were furnished by the industrial revolution
which was marked by extensive invention especially in the textile industry. In this
period manufactories were superseded. The aim of production was profit and
accumulation of surplus value. The initial form of capital was user capital. The
capitalists bought commodities and resold them at a profit. There was exploitation
of labour which led to struggles between labour and the capitalist over the level of
remuneration, working conditions etc. as a result the capitalists accumulated a lot
of wealth and controlled the state. This led to bourgeoisie revolutions in a bid to
establish democracy and republican rule. There emerged the ideologies of freedom,
equality and liberty. The monarchy either accepted the dictates of the bourgeoisie
like in England or resisted and got thrown aside like in France.

Developments in the law;

There was a greater magnitude of risks of injury especially in the factories and out
of the transport system. The working class lived in horrid conditions because they
were at the mercy of the profit oriented capitalists. There was also mass production
as a result of the industrial revolution, which heightened the risks to consumers.
The capitalists were in frantic competition and needed to survive. They were not
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ready to reduce their profits to pay workers or pay them compensation for any
injuries. The law was preoccupied with the protection of capitalists at the expense
of other classes of society. There was introduction of democracy and the state is
somewhat liberalized. The law of defamation was relaxed. Trespass became a
personal action. Many of the injuries that occur are not remedied because the law is
preoccupied with preserving the profitability of the capitalists.

Developments in the law of defamation.

This time there were developments to try and put aside the law especially in regard
to public affairs. The law creates a lot of defenses to the action of defamation.
There was a representative government and public affairs had to be discussed even
the conduct of public officials. They had public rallies with a lot of freedom of
speech. In 1840 there was a Parliamentary Papers Act, which provided for freedom
from defamation liability for publishers of parliamentary papers. In 1843 Lord
Campbell’s Act allowed an apology to be pleaded in mitigation of damages in an
action for defamation. In 1868 there was the case of Wason V Walter, which
accepted an apology to be pleaded in mitigation of damages for defamation. It
extended the defense of qualified privilege to publishers of independent paper
reports of parliamentary proceedings. In 1881 the Newspaper Libel Act had a lot to
do with criminal defamation. It provided that where there was an accurate, fair and
un malicious report of proceedings at a lawfully convened public meeting, such a
report would be privileged even if it contained defamatory matter as long as the
editor allowed the person concerned a chance to explain in the next issue of the
paper. Summary of developments during this period. The law was concerned with
the protection of private enterprise. In order to achieve this, three defenses were
developed. · Common employment. · Contributory negligence. · Voluntary
assumption of risk. These were used to reduce the liability for injuries. Vicarious
liability also became established during this period, thus widening liability. A
person was held liable for the torts of another on the basis of the legal relationship
between them (Principal/ agent, Employer/ Employee relationship). The Principal/
Employer/ Master was made liable for the torts of his agent/ employee. This was
because torts in industries were more likely to be committed by employees than
employers. Therefore employers were made liable in damages for torts committed
by their servants in the course of employment. Common employment. A workman
could not recover damages against his employer (vicarious liability) for injuries
caused to him by another workman in the same employment. In this way the
benefits of vicarious liability were denied to employees in the industries. This
development was due to the fact that the majority of accidents were caused by
fellow employees Contributory negligence. If a person was injured as a result of
the negligence of another person but the victim in some way contributed to his own
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injuries the courts could not allow him to recover damages to the full extent of his
injuries. This was therefore an absolute defense at that point in time. Voluntary
assumption of risk. If one consented to risks he could not recover damages in
respect of the resultant injuries. This was used by employers to prevent workers in
factories from recovering damages in respect of their injuries. The employers
claimed that the employees entered employment knowing the risks they faced.

Strict liability.
Rylands V Fletcher. The law developed strict liability in relation to the use of
land. It was designed to redress disputes amongst property owners. If one
committed a tort he would be liable even if he had put in place precautions against
the tort or had good intentions in committing the same. Capitalism was unplanned
and the competing use of land was bound to result in injuries to some people,
which made strict liability necessary. It was limited to the protection of property
owners through recovery of damages to property and was not extended to personal
injuries.

THE PERIOD OF FINANCE CAPITAL.

This was a period of monopoly capital. It emerged from industrial capitalism
which was geared towards profit accumulation. There was a lot of competition and
massive technological innovation. Because they produced for an unplanned market
and due to stiff competition some industrialists were out competed, undercut,
forced to sell their capital or became subsidiaries of bigger enterprises and
monopolies begun to emerge. This was due to the cost of production. The price of
raw materials was rising and monopolies had to be organised to control the price of
the raw materials. Monopolies emerged through two main processes: centralization
and concentration. Concentration is the process of accumulation (ploughing back
the profits into production in order to accumulate value.) it is a quantitative
process. Centralization is a qualitative process. Capital already accumulated is
spread among smallholdings that are merged into bigger units e.g. cartels that are
more qualitative as smaller units. The two processes affect each other: after
accumulation, there is a better position to centralize. These processes resulted in to
monopolies and since they grew out of competition they became self- enhancing
and they grew bigger and bigger in to international monopolies. The new role of
banks. The formation of monopolies also occurred in the field of banking. Bigger
banks took over smaller ones. Through credit facilities, they became universal
keepers and distributors of capital/ means of production. They accelerated and
intensified the process of centralization and concentration through the credit
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facilities. They determined which enterprise should be funded and this favoured
the big monopolies at the expense of the small firms. The high profile of the banks
is reflected in the collapse of the stock exchange. This was because they collected
large sums of money through extending credit, discounting bills of exchange and
maintaining current accounts. Finance capital This was not money capital but a
social phenomena that occurred in the 1870’s. One of the most important
developments in this period is the emergence of a close connection between the
banks and the industries. Previously banks had been intermediaries for deficit and
surplus budgets. Banks developed a close relationship with the industries through
their multiple dealings with the industries which enabled the banks to obtain fuller
and more detailed information about the economic conditions of those enterprises.
In the result, the industrial capitalists became more and more dependent on the
banks. There was thus establishment of personal links between the banks and the
big industrial and commercial enterprises, acquisition of shares and appointment of
bank directors to boards of directors of the commercial enterprises and vice versa.
This is enhanced by appointing government representatives and civil servants to
boards of these industries. The result is that banks hold shares in industries and
industries hold shares in banks. There is a “merger”. There is no independent bank
capitalism and industrial capitalism, thus forming a new form of finance capital.
Banks developed division of labour amongst themselves, i.e certain directors for
certain areas in industry and also developed research units to improve on
production. The concentration of production and the monopolies arising there
from, the merging of coalitions between banks and industries, is the history of the
rise of finance capital. The export of capital Capital that was concentrated in
Europe could not be used profitably due to over production (capitalist production
became more and more capital intensive and the labour variable reduces) which
lowers prices and the wages. There was need for cheap sources of raw materials
and the need to control such sources. Capital was exported, on the basis of
monopoly, from Europe to open up new markets, new sources of raw materials and
infrastructure in those areas. Division of the world amongst monopoly companies
As a result of the potential export of capital, the monopolies that emerged divided
the world amongst themselves. They curved out sphere of influence for themselves
where they could export capital exclusively and acquire raw materials cheaply to
maintain their monopoly power and keep out others eg I.B.E.A.Co. Partition of the
world The division of the world between companies could only be guaranteed by
the state and its power of coersion acting on behalf of the monopolies. This was the
essence of imperialism and colonization.

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 Legal Developments;
With the export of capital to places with cheap raw materials and access to
markets, supernormal profits were earned. These profits provided an opportunity to
make concessions that were necessary for capitalism to continue. This was because
the conflict between the capitalist and the working class has sharpened. By the mid
19th century and onwards the working class had organized themselves into trade
unions and socialist parties to overthrow capitalism. They cultivated socialist
ideologies like Marxism and socialist revolutions. Capitalism was therefore under
siege and it became necessary to make concessions to the working class to alleviate
their living conditions and maintain capitalism. The concessions are represented
through welfarism to benefit the working class. There were unemployment
benefits, compensation in case of injuries and insurance to protect the working
class. These were not based on tort but statute. Within the law of torts the
concessions were represented in the relative liberalization of the law. a) There
developed liability in negligence based on fault which was a broad basis of liability
for the manufacturers, liability in negligence based on statute and the law was no
longer exclusive b) The defenses of common employment, voluntary assumption
of risk and contributory negligence were modified: - Common employment and
contributory negligence were modified by statute. Contributory negligence was no
longer an absolute defense. Rather the damages a plaintiff receives are reduced.
Common employment was abolished by statute - The courts modify the defense of
voluntary assumption of risk. Court imposed stringent measure for it such that it no
longer afforded much protection to the industries. c) The new technological
developments as a result of the industrial revolution produced new risks. The
chemical industry was invented and became the basis of manufacture. This led to
mass production of consumer products, which presented new risks to the
consumers due to the quality of products. Product liability was developed to safe
guard consumers, which became the basis of the law of negligence. See Donogue
V. Stevenson d) There also developed liability for negligent misstatements mainly
in respect of banks that gave investment advice and other such firms. See Hedley
Byrne & Co. V. Heller Relationship between the law of tort and insurance:
Insurance provided an opportunity for people to insure against new risks that
technological developments presented. There was social insurance by the welfare
state e.g motor accidents insurance and health insurance.

LAW OF TORTS IN UGANDA

With the exportation of capital to Uganda, it was imperative that the legal system
be exported as well. In Uganda English law was received as it was on the 11th of
August 1902. Although the legal principles theoretically existed, the actual practice

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was lacking. Torts like product liability are not compensated because of financial
constraints.

RECEPTION AND EVOLUTION OF ENGLISH LAW IN UGANDA

Uganda was declared a British protectorate on June 18th/ august 21 1894. sir Harry
Johnson came as a special commissioner to negotiate the 1900 Buganda agreement
and it was regarded as the first constitution. In 1902, we had the Uganda Order in
Council which provided that the jurisdiction of the court would be exercised so far
as circumstances permitted upon the principles of and in conformity with the
substance of the law for the time being in force in England. There was no
parliament or law making body but the administration was governed by the OIC. It
thus brought in the English law. The OIC, (1) established the high court of Uganda.
(2) Through its amendment in 1911, it clearly provided for the date of reception of
the law of England. (3. It introduced the repugnancy doctrine. The court had
jurisdiction to hear non natives and cases which involved a native and a non native.
The 1911 amendment is important in the sense that it established the date of
reception of English law, that is, 11th August 1902. Any law existing in England as
at 11th August 1902 would be the law enforced in Uganda. Jurisdiction was to be
exercised in conformity with the substance of the common law, doctrines of equity
and statutes of general application in courts in England on 11th August 1902. The
1902 OIC brought in law though of English origin but from India. It provided that
civil procedure, criminal procedure and the penal code of India except so far as it
may otherwise be provided would apply in Uganda. it remained the substance of
the law till 1962. The Judicature Act 1962 was made by the parliament of Uganda
by then. It provided in sec 2 that the substance of the common law of England,
doctrines of equity in force in England on the date of reception shall continue to
apply provided the said common law, doctrines of equity and statutes of general
application shall be in force in Uganda only so far as the circumstances of Uganda
and its inhabitants permit, subject to such qualifications as local circumstances
may render necessary. The Judicature Act 1967, ended the statues of general
application as the laws applicable in Uganda. this was not in expressed terms. It
was simply an omission on their being mentioned. See UG motors Ltd v Wavah
Holdings Ltd. Art 20, of the 1902 OIC provided as follows: in all cases, civil and
criminal to which natives are parties every court case shall be guided by native law
so far as applicable and is not repugnant to morality or inconsistent with any OIC
or ordinance or regulation or rule made under any OIC or ordinance. In summary,
the law applied is categorised as statutory law: principal and subsidiary law, also
known as written law customary law, other than criminal law applied law: law
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which is made by British parliament and accepted by the judicature statute doctrine
of equity note: see 1st schedule of the judicature act for applied law. See
interpretation act for definition What is common law? How did common law
become part of the law applied in Uganda? what are the present guidelines/
principles to the application of common law. Common law is the common sense of
a community crystalised and formulated by our ancestors. It’s the customary law
uniformly accepted in society. It evolved through certain courts in England through
their administration of justice. They recognised and applied certain customs as
being uniform. Thus its either: the system which puts emphasis on legal decisions
(the doctrine of precedent) or common law according to common law countries
and is civil law. The Africa Order in Council of 1889 required the consul to
exercise jurisdiction in conformity with the substance of the law in England.
Specifically for Uganda it was the 1902 OIC. These continued to operate till
independence when they were repealed and the judicature acts came in to carry on
the substance of the application of the common law. Guiding principles in
application of common law “substance of the common law”-court does not apply
the whole common law but the substance of it applied only in so far as the
circumstances permit if there is a conflict between the rules of equity and common
law, the rules of equity prevail because the principles of equity(natural justice) are
more acceptable and less alien than the common law. The MCA sec 10 (3) says if
in any cause or matter there is a conflict or variance between the rules of equity
and rules of common law with reference to the same subject matter, the rules of
equity shall prevail. The contract act sec. 3 specifically provides that the common
law of England shall apply.

N.B : Take a cautious note that the author is not an expert in the subject but
only an ordinary student. The information above should be used in conjunction
with other authorities such as cases and other works done by great scholars. I
am also open to be guided where my observations are improper.

Thanks.

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