Trespass to Person

Trespass to the person involves direct interference with a person’s body or liberty. In the old days, trespass was seen as any wrong committed recklessly, intentionally, negligently or directly against a person or his property. Today, trespass is defined as any wrongful or unauthorised interference, direct or intentional, with a person or a violation of a person’s right to liberty.

It protects a person’s right to violation of any form but because of its nature which is majorly deterrent, it has served as a viable tool in the protection of human rights.

Trespass to person is as much a tort as it is a crime. It is more deterrent than compensatory because the tort is actionable per se, that is, the plaintiff need not prove that he has suffered actual damage. Liability will arise by the act simply being committed. Trespass to a person can be a direct or intentional act. International here does not necessarily mean deliberate, rather it means more of the defendant intending to carry out an act, even if the end result is unintended.

A person’s intention is deduced from the results of the act committed.
The act amounting to trespass must be a direct interference with the person in question. Thus, if A places a log on the highway and B trips over the log and falls, that is not a direct interference. The result will be consequential but not intentional or direct. However, where injury or damage occurs as a result of an immediate act of the defendant, such an act will be said to be direct.
If an act is intentional, it would give rise to liability in trespass and not negligence but if an act is negligent, it will give rise to liability in negligence and not trespass.

Trespass to person has four arms but consists of three (3) torts. They are;

Assault
Battery
False imprisonment
Other acts intended to cause physical and mental harm

Assault

In ordinary everyday use, the word “assault” means to attack, beat or hit somebody. Thus, in ordinary parlance, the word assault is used to include both assault and battery. However, in the law of tort, assault and battery are two different and separate torts. Assault under the Law of Tort is threatening to harm or apply force on another person with the tortfeasor having the ability to carry out his threat. Such an act must put the other person in fear of the immediate application of unlawful or unwarranted force.

Kodilinye defines assault as:

"any act which puts the plaintiff in fear that battery is about to be committed against him.” Therefore any act, gesture, or menace by the defendant which puts the plaintiff in fear of immediate application of force to his person is an assault. Accordingly, any unlawful act of a person which puts another person in reasonable fear of battery is an assault.

Under the Criminal Code Act, the word “assault” is often used to cover both assault and battery. Accordingly, in criminal proceedings, they are usually charged. In view of this reason, sections 252-253 and 351-360 of the Criminal Code Act, define various types of assaults.

Assault is a crime and a tort. Since trespass to person is a tort and a crime, a victim may seek redress in both civil and criminal law. However, civil action is often not brought unless the tortfeasor or his employee has money and can afford to pay compensation. Otherwise, criminal action is often brought in the magistrate court by the police on behalf of the state as part of the public policy of the state to sanction crime and maintain law and order.

Furthermore, assault and battery often occur together because they are often committed concurrently or simultaneously. Thus they are often charged together in criminal proceedings just as civil claim is often brought for both because one seldom occurs without the other.

In summary, in the law of tort, an assault is essentially:

An attempt or threat to apply force or violence to another person.
With the apparent ability to carry it out.
Which puts the person in reasonable fear of battery.
Contact is unnecessary.

Elements of assault: what needs to be proved

The elements a plaintiff needs to prove to succeed in a claim for assault are:

That there was a threat to apply force
That the act will put a reasonable person in fear of battery. In other words, that it would be reasonable for the plaintiff to expect immediate battery.

That there was a threat to apply force

There can be assault without battery. In assault it is not necessary to prove that the plaintiff was actually put in fear or experienced fear. What needs to be proved is that it was reasonable for the plaintiff to expect immediate battery. As a general principle, pointing an unloaded gun or even a model, or imitation gun at a person who does not know it is unloaded or that it is a model gun and therefore harmless, is an assault. In R v St. George, the defendant pointed a gun he knew to be unloaded at the plaintiff who did not know that it was unloaded, at such a distance that the complainant could have been hurt if the gun was fired. On a claim for assault the court held: that there was an assault, even though the gun was unloaded, because the complainant was put in fear of being shot.

In Innes v Wylie, the defendant policeman who stood motionless in order to block a door way, was held not to have committed assault on the plaintiff by so doing. See also DPP v Little.

In Smith v Supt of Woking Police Station, the defendant appellant frightened the complainant by looking through her bedroom window late in the night. The court held that the accused was guilty of assault as the complainant was put in fear of personal violence.

Also in R v Barrett, the defendant advanced towards the complainant, shook his fist angrily and threatened to beat the complainant there and then, as a result of which the complainant was put in fear of immediate application of force to his person. The court held: that there was assault.

In Stephen v Myers, the plaintiff was the chairman at a parish meeting where he was sitting at the head of the table with about 6 to 7 persons between him and the defendant. In the course of the meeting, the defendant threatened to eject the plaintiff from the venue of the meeting. He stood up and started advancing to the plaintiff to carry out the threat when he was stopped from reaching the chairman by the person sitting next to the chairman. In a claim for damages for assault the court held that assault was committed. The defendant was proceeding to throw out the chairman, though he was not near enough at the time to have struck him. He advanced with on intention which amounted to an assault in law.

An order coupled with a threat may be assault

It is also an assault to threaten to apply force to a person if the person does not immediately proceed to do some act or refrain from an act unless the defendant has legal justification. Similarly, an innocent act or conduct may amount to assault when coupled with threatening words.

In Read v Coker The defendant had a business disagreement with the plaintiff, his partner. The defendant thereupon ordered his workmen to throw the plaintiff out of the premises. They then surrounded the plaintiff rolling up their sleeves and threatening to break his neck if he did not leave the premises. The court held that there was an assault. There was threat of violence together with an intent to do battery to the plaintiff. Threatening to break the plaintiff’s neck if he did not leave the premises was an assault.

In Ansell v Thomas the plaintiff who was the managing director of a company left the factory early due to the fact that two policemen invited by his co-directors threatened in words to forcibly eject him from the company's premises, if he did not leave voluntarily. In a claim by the plaintiff, the court held that the co-directors were liable in assault.

Words alone

As a general rule, words alone, that is mere words do not amount to assault. To amount to an assault, the intention to apply force to the plaintiff must be shown by some action or gesture, however slight or subtle and not just in words or speech. A gesture alone may amount to assault. Similarly, a gesture coupled with words commonly amount to assault. On the other hand, words alone may amount to assault. This is so, for often a thing said is a thing done. Words often put a person in fear of personal violence. Thus, as an exception, whenever words of threat put a person in reasonable expectation of fear, there is assault. See for example the following cases:

R v. Ireland & Burston

The defendants made repeated silent phone calls to three victims. In some calls all he did was resort to heavy breathing. The victims were stalked for months and were afraid to be alone. The victims suffered mental illness or depression. The House of Lords held that there was assault. The silent phone calls having put the victims in fear of violence amounted to assault.

Janvier v Sweeney

The plaintiff, a French woman living in England was engaged to a German, who was detained in the Isle of Man, England during World War I. One of the defendants called at her home and falsely told her that he was representing the military authorities and that she was wanted, because she has been corresponding with her fiancé, a German who was suspected of being a spy. As a result of the false threat, the plaintiff suffered nervous shock and on discovery that the accusation was false she claimed damages. It was held that she was entitled to damages for personal injuries for trespass to person. See also Wilkinson v Downton (1897) 2 QB 57.

Words may negate assault

On the other hand, words may explain and thus negate the possibility of battery or invalidate what would ordinary have been an assault. Thus, words may prevent what would have ordinarily amounted to an assault from coming into being. This was the position in:

In Tuberville v Savage. The defendant put his hand on his sword, which act amounted to a menace or threat and therefore an assault, and said "if it were not assize time [court session time] I would not take such language from you." It was held that there was no assault. The words of the defendant showed that he did not intend to assault the plaintiff, as the judges were in town for a court session.

In R v Light, the accused husband raised a sword over his wife's head and said "were it not for the bloody policeman outside, I would split your head open”. The court held: that the accused husband was guilty of assault. See also R v Wilson.

Sometimes, a battery may be committed straight away, without first having committed an assault, such as giving a person a blow suddenly from behind, or whilst he is asleep or otherwise unconscious.

That the act will put a reasonable man in fear of battery

Finally, for assault to be committed, the act of the defendant complained about must be such that would put a reasonable man in fear that force is about to be applied to him. The act must put a reasonable man in fear of violence. This test is an objective test and it is not subjective to any particular plaintiff alone. Therefore, where the threat would not put a reasonable person in the shoes of the plaintiff in fear of violence, the tort of assault is not committed.

However, the mere fact that the plaintiff who was threatened with battery is a brave person and was not frightened by the threat, will not bar the plaintiff from successfully claiming damages for assault, as long as the alleged act of assault would make a reasonable man or reasonable person in his shoes to be afraid of battery.

In Hurst v Picture Theatres Ltd, the plaintiff paid for admission to the defendant's theatre. The defendants believing that the plaintiff had entered without payment asked the plaintiff to leave. He was not afraid and refused to leave and was forcibly ejected. He sued for damages. The court held that the defendants were liable for assault and false imprisonment.

In Brady v Schatzel, the defendant pointed a gun at the plaintiff and threatened to shoot the plaintiff. The plaintiff sued for assault. Giving evidence in court the plaintiff said that he was not scared at the time. The court held that the defendant was nevertheless liable for assault. The act in question amounted to an assault. It was immaterial that the plaintiff was not scared. The purpose of the law is to make people free from threat of violence or immediate application of battery.

Where a threat is impossible of being carried out there may be no assault. Accordingly, where a threat is clearly impossible of being carried out, there is no assault.

Battery

Battery is the application of force, however slight on another person without his consent and without legal justification.

According to C.F. Padfield, battery is:

applying force however slight to the person of another, hostilely or against his will.

And according to Gilbert Kodilinye:

battery is the intentional application of force to another person.

It may be explained that battery is the application of force however slight, on another person. Thus the slightest, merest or the least touching of another person is battery. It is the use of unlawful force on another person without his consent. Accordingly, it is the unlawful application of force to another person regardless of its degree. It is any act of the defendant which intentionally causes some physical contact with the person of the plaintiff, without the plaintiffs consent.

It includes striking, or touching a person in a rude, angry, revengeful or insolent manner. The touch must be hostile and the plaintiff must not have consented to it. It is battery to intentionally touch another person or to bring any object into contact with another person. Such contact is sufficient application of force to give right to a claim in battery.

Battery can be a direct or indirect contact with a person or something on his person. For an act to amount to battery;

The act must be done with the intention to bring about an offensive, harmful contact with the person.
The contact is unwelcome, without consent and where consent is procured, it is done with force.
The contact is not otherwise privileged.

Battery can be committed in many different ways, for instance: Beating with a stick, pouring water on a person, or shooting a person with a gun, Knocking a person down, or running a person down with a motor vehicle, spitting on a person's face or throwing stone at a person, removing a chair from under a person who thereby falls to the ground, pulling a person away from something for his own good, setting a dog to attack a person, etc.

Elements of battery: what needs to be proved

What a plaintiff needs to prove to succeed in a claim for battery are:

Application of force, and
Intention to apply force.

That there was application of force

There must be application of force on the plaintiff, no matter how slight. However, common forms of social touching that are reasonable and are generally acceptable are not battery, principally, because they are not regarded as tortuous and there is implied consent to such touching. Examples of reasonable and generally acceptable social touching which are not regarded as tortuous and to which there is implied consent include tapping a person on the back as part of a congratulation, or to draw a person's attention, jostling in a crowd, etc.

That there was intention to apply force

It is sufficient for the plaintiff to establish that the intention of the defendant was to apply force. It is not necessary to prove intention to hurt the plaintiff. If there is intention to injure any person other than the plaintiff, there is battery, such as where a stray bullet hits a bystander. In Stanley v Powell, the defendant was a member of a shooting party who were hunting game. The defendant fired his gun and a pellet hit a tree and bounced off into the eye of the beater who was employed to drive birds to the shooting party. The court held that in the absence of intention or negligence, the defendant was not liable to the plaintiff for battery. Also see the following cases: Wilson v Pringle and Lane v Holloway.

Battery need not be violent, inflict pain, nor injury

It is not necessary that the contact be violent or inflict pain and injury need not result. Therefore, touching a person, or touching a person's cloth or anything attached to a person, if done unlawfully, wilfully, or angrily is battery. Therefore there may be battery without violence. Also, a surgical operation when done unlawfully without the patient's consent may constitute battery. Accordingly, battery includes the slightest contact, touch or force, so that harm need not result.

Minimum contact is battery: the minimum contact rule

The least touch or contact is sufficient to constitute battery. Though a plaintiff may only obtain a nominal award of damages for such contact. In light of this, unlawful application of force to a person, or contact with anything attached to a person may be battery in view of the minimum contact rule.

Let us consider some cases.

In Scott v. Shepherd, the defendant lit a squib "fire work" at a trade fair and threw it at B's stall. B threw it away to C's stall, and C threw the squib to the plaintiffs stall, where the squib exploded and injured the plaintiff. In a claim for damages for battery the court held: that the defendant who lit the squib was nevertheless liable to the plaintiff. The chain of causation of damage set in motion by the defendant was not broken by the actions of Band C.

In Fagan v Metropolitian Police Commissioner, a policeman asked the defendant appellant to park his car. The defendant drove the car onto the policeman's foot on which a tyre then rested. When the defendant realised what he had done, he refused the policeman's request to reverse off his foot. The court held that the appellant was liable for battery.

In Collins v Wilcock, a police woman wishing to question the plaintiff appellant on suspicion of prostitution, took hold of the appellant's arm to detain her for the purpose of questioning her. The police woman was not exercising a power of arrest at the material time as she was not on duty. Held: that there was battery of the appellant. The defendant police woman's conduct had gone beyond acceptable lawful physical contact between persons and accordingly her act constituted battery on the plaintiff appellant.

In F v West Berkshire Health Authority, the court on application of the health authority allowed sterilization of a woman suffering from a serious mental disability without her consent. In an action for damages for unlawful sterilization without consent, the House of Lords held that the court had the power to make such order under its inherent jurisdiction provided that the operation was accepted as being in the best interest of the patient, that is, the operation was accepted as appropriate treatment by a reasonable body of medical opinion, skilled in that particular form of treatment.

In R v Martin, the defendant placed an iron bar across an exit door of a hall, put off the lights on the staircase and shouted "fire". In the struggle to escape, several persons were injured. The court held that the defendant was liable for battery.

In Leon v Met. Police Commr, the plaintiff rastafarian was wrongfully suspected of carrying drugs. The police pulled him off a bus, punched and kicked him. The court held that there was battery of the plaintiff.

In Ballard v MPC, the plaintiffs who were feminists were attacked by police during a demonstration. One was felled down and carried away unconsciously. Another was felled down and poked with a baton in the stomach and hit over an eye. The police hit the head of the third lady with a baton. The court held: that there was battery.

In Pursell v Horn, the defendant threw water on the plaintiff. The court held that it was battery to .throw water on a person.

In Cole v Turner, Holt CJ held "that the least touching of another in anger is battery.” To touch another person in anger, though in the slightest degree or under pretence of passing is a battery. If two or more persons meet in a narrow passage and without violence or design of harm one touches the other person gently, it is not battery. However, if any of them uses violence against the other to force his way in an inordinate manner or engages in any struggle about the passage to a degree as may do hurt, it will be a battery.

In Nash v. Sheen, the plaintiff went to the defendant hair dresser and requested for a perm. Instead of a perm, the defendant gave the plaintiff an unwanted tone rinse or hair dye which caused rashes on the head of the plaintiff. It was held that the defendant was liable for battery.

In R v Day, the defendant slit the complainant's clothes with a knife, and as the complainant tried to stop it by reaching for the knife, his hand was cut. Parke B held that it was battery to use a knife to slit the clothes which a person was wearing and although the complainant's hand was cut in reaching for the knife, it was immaterial as this does not subtract from the offence. In other words, there were two acts of battery; the slitting of the clothes and the cut on the complainant's hand.

Involuntary contact

As a general rule, involuntary contact, or infliction of force over which a person has no control is not battery and may therefore be excused from liability.

In Gibbons v Pepper, the defendant was riding his horse. The horse, in sudden fright ran away with him on it. He called to the plaintiff pedestrian to get out of the way and upon his failure to do so, the horse ran him over against the defendant's will. The plaintiff sued for assault and battery. The court held: per curiam, that the defendant was liable and judgment was given for the plaintiff. In the court's opinion; if I ride upon a horse and another person whips the horse so that he runs away with me and runs over any other person, he who whipped the horse is guilty and not me. But if I, by spurring the horse, was the cause of the accident, then I am guilty. In the same manner, if A takes the hand of B and with it strikes C; A is the true trespasser and not B.

Key points

Battery need not be a hostile act. Thus, it may amount to battery to carry out surgery without consent, emergency, or justification or to kiss a woman against her will.
Battery may be committed on a person not only when the person is conscious, but also while a person is unconscious, such as, when a person is asleep, or unconscious during surgery.
An omission, especially if it persists may be a battery. For instance, a motorist, who accidentally drove his car on to a police constable's foot while parking his car commits no battery, but he commits battery, if he ignores the constable's plea to 'get off my foot'.
In Fagan v Metropolitan Police Commissioner, the defendant appellant was reversing his car whilst the complainant police constable standing in his front indicated where he should park. He then drove the car onto the policeman's foot and stopped thereon. The constable told the appellant to get off his foot and received an abusive reply. The constable repeated his request several times and the appellant finally said "Okay man, Okay" and slowly reversed off the constable's foot. He was charged with assaulting a police officer in the execution of his duty. The court held that the appellant was liable and his appeal was dismissed. The appellant's conduct could not be regarded as mere omission or inactivity. There was an act of battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment, the intention was formed to produce the apprehension which flowed from the continuous act of being on the complainant’s foot.
An act of battery must be intentional, reckless or negligent. Thus, not all acts of contact or touch are battery. Contacts conforming to accepted practice or ordinary incidents of daily life are not battery and are not actionable. Thus, for instance, to jostle or push in a crowded bus or sports stadium is not battery. Consent is generally presumed. This is so because, a person is expected to put up with the ordinary hazards of daily life, such as stepping on another's foot, and elbowing when walking on the street. To succeed in a claim for battery in such circumstances, a plaintiff is usually required to prove a hostile intention or negligence. However, it may be battery, if a person uses violence to force his way through a crowd in a rude or inordinate manner. To touch a person to attract his attention is not battery.
In Coward v Baddeley, in the course of a fire incident, the plaintiff lay his hand on the defendant fire officer to attract his attention. Whereupon the defendant fireman assaulted and beat the plaintiff and gave him to a policeman and caused him to be imprisoned in a police station for a day and afterwards taken into custody after leading him along public streets before a magistrate. The court held that the defendant was liable for trespass to person. A person cannot justify taking another person into custody for merely laying a hand on him to draw his attention, if the touching was not done hostilely.
Also, In Stanley v Powell, the defendant was a member of a shooting party who were hunting game. The defendant fired his gun and a pellet hit a tree and bounced off into the eye of the beater who was employed to drive birds to the shooting party. The court held: that in the absence of intention or negligence, the defendant was not liable to the plaintiff for battery.
In Fowler v Lanning, the defendant shot the plaintiff with a gun. The plaintiff sued for personal injuries. The plaintiff did not allege that the shooting was intentional or negligent but simply averred that the defendant on a certain date and place shot him. The court held that the action must fail. An action for trespass to person does not lie if the trespass was neither intentional nor negligent.

False imprisonment

False imprisonment is the infliction of bodily restraint which is not expressly or impliedly authorised by law. False imprisonment protects a person’s freedom from restraint and right to liberty. Imprisonment is something more than mere loss of mobility power, it includes the notion of restraint within some limited space defined by a will or power exterior to our own. For false imprisonment to occur, there need not be actual physical constraint, it will be sufficient if the person though had the physical capacity to leave, it would be unreasonable to expect him to do so. There must be an intention to deprive the claimant of his liberty. And the claimant would not be required to prove ill will or malice. The presence of intention is sufficient.

Imprisonment usually means locking up a person in jail but in this context the term imprisonment has a much wider meaning and includes any physical restraint of a person in a locked or an open place.

Lord Edward Coke CJ clearly explained the law thus;

Every restraint of the liberty of the free man is imprisonment, although he be not within the walls of any common prison.

Similarly, Sir William Blackstone also said;

Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets.

Some of the characteristics of false imprisonment are;

Depriving another person of his right to personal liberty and freedom of movement without just cause.
Compelling a person to remain where he does not wish to remain or to go to where he does not wish to go.
Restraint need not be in any cell or prison but may be in the open street.
There need not be battery.
The use of authority, any influence, order, trick, or request is sufficient so long as the person is available to his captor.
The person need not be aware that he is being detained at the time. See Meering v Graham White Aviation Co
The restraint must be total or complete. In Bird v Jones, a bridge construction company lawfully stopped a public footpath on Hammersmith Bridge, London. A spectator of a boat race insisted on using the footpath but was stopped by two policemen who barred his entry. The plaintiff was told that he may proceed to another point around the obstruction but could not go forward. He declined to go in the alternative direction and remained there for about half an hour and then sued for false imprisonment. The case was fully decided in an appeal. On appeal, Patterson J said; “…but imprisonment is as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring upon him...”

Confinement is not necessary

For there to be false imprisonment there need not be confinement in a prison or in a police cell. The mere holding of the arm of a person as when a police officer makes an arrest in the open street is sufficient. Thus, one may be confined or falsely imprisoned in a house, vehicle, cell, prison, mine, in a street, estate or in a specific locality, such as a district or province, so long as the restraint is complete and the person is made to remain where he does not want to remain or to go to where he does not want to go.

The intention of the tortfeasor is irrelevant

The state of mind, that is, the intention or malice of the tortfeasor is irrelevant. Once there is an act of false imprisonment, the tortfeasor is prima facie liable in the absence of a lawful excuse. Thus, where a tortfeasor recklessly or negligently locks a door or allows a door to lock against another person, he would be liable for false imprisonment even though he did not know that there was a person in the room or house. Thus, any unlawful restraint of personal liberty, freedom of movement or arrest of a person without legal authority is a false imprisonment. An arrest without lawful authority is a false arrest or false imprisonment because it restrains a person's liberty. Any person who takes away another person's liberty in these manners may be sued for this tort. In Warner V. Riddiford, the defendant terminated the employment of the plaintiff, his resident manager and locked his room upstairs so that the plaintiff could not collect his belongings and leave the premises. It was held that there was false imprisonment, since locking up his personal effects placed an active restraint on his mobility.

The purpose of the tort of false imprisonment is to protect the fundamental right to personal liberty and freedom of movement from being taken away by government or any person. The presence of ill-will or malice is not a relevant element of this tort. However, where intention or malice is proved by a plaintiff, punitive damages may be awarded in addition to compensatory or nominal damages.

In John Lewis & Co. Ltd v Timms, the plaintiff, a lady and her daughter were detained for some time in a supermarket by its security men on suspicion of shop lifting. It was later discovered that she was innocent of the suspicion. The House of Lords held that there was false imprisonment and she was entitled to recover damages.

The following cases may also prove instructive on this topic.

Kuchenmeiser v Home Office; Collins v Wilcock; Weldon v Home Office; Hague v D.G. of Parkhurst Prison; and R v Self.

In Dumbell v Roberts, the plaintiff was returning from work dressed in his uniform and carrying a bag of soap flakes when he was stopped and questioned by the defendant police officers. He was taken to the police station and charged with being in unlawful possession of soap flakes, which charge could not be substantiated and was dismissed by court. The plaintiff sued for false imprisonment. There was no evidence to suggest that the plaintiff had stolen the goods or that he had received them knowing them to be stolen. The court held that the police officers were liable for false imprisonment. When the two defendants arrested the plaintiff without a warrant and made no attempt to ascertain the plaintiff’s name and address, they failed to comply with the condition precedent to the exercise of their right to arrest him without warrant under the statute.

In Burton v Davies, the plaintiff was riding in a motor vehicle driven by the defendant. He prevented the plaintiff from coming down from the vehicle at a certain place by driving past in excessive speed. It was held that driving a motor vehicle past and preventing a passenger from alighting at his destination was false imprisonment.

In Onitiri v Ojomo, the defendant magistrate was presiding at a court where the plaintiff was a party in a certain proceedings. For an alleged contempt in the face of the court, the defendant ordered the plaintiff to be detained pending the plaintiff’s trial for the contempt of the defendant's court. The plaintiff believing the detention to be wrongful sued the magistrate for damages for false imprisonment. De Commarmond S.P.J. in the High Court held that the defendant as a magistrate was not liable in damages for any act done or ordered to be done when acting in his judicial capacity. See also Soji Omotunde v AG. Fed. and The Guardian and Liversidge v Anderson.

In Union Bank of Nigeria Ltd & Anor v Ajagu, the plaintiff/respondent customer of the 1st defendant appellant bank, on a certain day went to the branch where he operated an account. When he was about leaving the premises, the 2nd defendant appellant an employee of the appellant bank locked the gate leading into and out of the bank premises in spite of the plaintiff’s entreaties to be allowed to leave. The plaintiff spent some time inside the bank's premises, after the conclusion of his financial transaction. The plaintiff sued for false imprisonment. The Court of Appeal held: that there was false imprisonment and the defendant appellant bank was vicariously liable for the false imprisonment of the plaintiff by its servant.

In The Queen v Lambo Sokoto, the accused allegedly caught hold of a girl in a street, took her to his room, undressed her, forced her to kneel down naked, and placed a piece of cloth on her head and by means of a hypnotic trance she was unable to move or speak. He immobilised her until the girl's father and a policeman who were looking for her arrived at the scene. On request by the police officer, the accused promised to release the girl if he was treated gently, which he did by calling the name of the girl thrice and by speaking to her in a language unknown to the policeman. She was thereupon able to speak and move. On being charged to court, the evidence as to whether the accused had locked the door of the room where the girl was found was inconclusive.

Charles J in the High Court held that there was false imprisonment. The court found that the accused had no lawful excuse for confining the girl against her consent. In this case His Lordship stated the law thus: "if one person immobilises another in a room by hypnotism, he confines that other in the room just as much as if he had locked the door of the room.” The accused had no lawful authority or excuse for confining the girl, who did not consent to the confinement.

In a charge for false imprisonment, it is unnecessary to prove that a person had exercised his powers of volition by deciding to leave a place of confinement but had been prevented from giving effect to that decision. It is sufficient to prove that he did not consent to the confinement. The onus of proving reasonable cause for the false imprisonment is on the defendant.

Restraint of the person is necessary

Restraint of the person is necessary, for instance, preventing a person from leaving a place, restraint of movement, or confinement of the person, whether in a prison or in an open street, and so forth. Thus the offence or tort of false imprisonment is committed once, the free movement of a person is prevented by any act. Thus, false imprisonment is any act that prevents liberty or free movement without legal justification.

The restraint must be total

For there to be false imprisonment, the restraint of the plaintiff must be total. Where there is a reasonable route, exit or means of escape, there is no false imprisonment. However, it is not a tort to prevent a person from leaving a premises when he has not fulfilled a reasonable condition on which he entered.

In Meering v Graham White Aviation Co. Ltd, the plaintiff was suspected of stealing some items from the defendant who was his employer. Two policemen who provided security to the defendant's office, asked him to accompany them to the company office for interrogation. The plaintiff who did not know what was his offence and was not aware that he was a suspect and agreed to the request. He remained in the office while the two policemen remained outside the room without the plaintiff's knowledge that they were there and with instructions to prevent him from leaving. He later sued for damages for false imprisonment. The court held that there was false imprisonment and he could claim. His lack of knowledge of the imprisonment at the material time was irrelevant. The restraint of the plaintiff must be total or complete. Therefore, to bar a person from going in three directions, but leaving him free to go in a fourth direction is not false imprisonment as he has not been in a situation of total restraint.

In Bird v Jones, a bridge construction company lawfully stopped a public footpath on Hammersmith Bridge, London. A spectator of a boat race insisted on using the footpath but was stopped by two policemen who barred his entry. The plaintiff was told that he may proceed to another point around the obstruction but that he could not go forward. He declined to go in the alternative direction and remained there for about half an hour and then sued. It was held that there was no false imprisonment since the plaintiff was free to go another way.

In Wright v Wilson, there was no false imprisonment where the plaintiff was able to escape from his confinement, after committing nominal act of trespass on a third party's property.

The means of escape must however be reasonable. Therefore, a means of escape which will endanger the life of the plaintiff will not excuse the defendant from a claim for false imprisonment. However, where a means of escape is available which will not endanger life, or cause a maim, there will be no false imprisonment.

If a person is on a premises or property and is denied exit or facility to leave, there is false imprisonment unless the restraint is an insistence on a reasonable conduct. Thus, as a general rule, it is false imprisonment to deny a person facility to leave a place without lawful justification.

Thus in Warner v Riddiford, the defendant terminated the employment of the plaintiff, his resident manager and locked his room upstairs so that the plaintiff could not collect his belongings and leave the premises. Held: There was false imprisonment, since locking up his personal effects placed an effective restraint on his mobility.

In Herd v Weardale Steel, Coal & Coke Co, a miner went into a mine as usual with the understanding to work for the specific period of his shift before coming to the surface. A dispute arose between him and his employers in the mine pit and he demanded to return to the surface but the employer refused to grant him the use of the hoisting cage for him to come to the surface and he was stranded in the pit for about 20 minutes. It was held that there was no false imprisonment. The miner entered the pit of his own freewill and the employers were under no duty to bring him to the surface until the end of his shift. Restraint for the Shortest Period of Time Is False Imprisonment.

The shortest period of restraint or confinement is false imprisonment. Thus no fixed period of time is necessary. However, a false imprisonment that is for a very brief time may only attract nominal damages.

Contact and use of force are not necessary

In committing false imprisonment, it is not necessary that force be used on the plaintiff by way of battery. There need not be any physical contact. A threat to use force on the plaintiff whereby the plaintiff is restrained by fear is sufficient. Therefore, an order such as "stay there or I'll shoot you" may be evidence of false imprisonment. The use of authority, intimidation, threat, influence, order, trick, hypnotism, pronouncement of arrest, or request to follow the tortfeasor is enough. Therefore, where a police officer wrongfully orders a person to follow him to the police station, without giving him the option of refusing to go, and the person obeys, the police officer may be liable for false imprisonment though he never touched the plaintiff.

In Aigoro v Anebuwa, the plaintiff was at a train station and about to board a train when the defendant called on a policeman to assist him to prevent the plaintiff from leaving on the train. The policeman then invited the plaintiff to come with him to the police station. No physical force was used to restrain the plaintiff. The court held: that there was false imprisonment. The plaintiff by being asked to come to the police station was not doing what he wanted to do, nor acting of his own free will.

In Clarke v Davis, the defendant police officers invited the plaintiff to accompany them to the police station. However, they assured him that he had the option not to come with them. The plaintiff went with them. The plaintiff later sued for false imprisonment. The court held that there was no false imprisonment. The plaintiff had an option to avoid the restraint. He acted of his own free will and could not turn around and complain.

Mere words may not amount to false imprisonment

In Genner v Sparkes, the defendant/court bailiff informed the plaintiff that he had come to arrest him. The plaintiff who was holding a pitch fork used it to prevent the bailiff from reaching him, while he ran into his house. In a claim by the plaintiff, the court held: that there was no false imprisonment, as mere words in the absence of any other act, such as, attempt to hold, or immobilise the plaintiff, could not amount to false imprisonment. Mere words without more would not make a false imprisonment.

In Russen v Lucas, the defendant/Sheriff of Middlesex, England shouted to the plaintiff who was behind a door at a bar: ‘I want you’. The plaintiff then replied, "wait for me outside the door, and I will come to you”. The plaintiff quickly escaped by another exit. On a claim for damages for false imprisonment, the issue was whether he was arrested and escaped from custody. Abbott C.J. held that there was no false imprisonment.

Mere words may not constitute arrest; and if an officer says "I arrest you" and the person runs away, it is no escape from custody but if the party acquiesces to the arrests, and goes with the officer, it will be a good arrest. The declaration of intention to restrain the plaintiff without actually restraining him was not enough. The defendant cannot be liable for escape from arrest.

Knowledge by the plaintiff of the false imprisonment at the material time is not necessary

It is not necessary for the person who is restrained to know at the material time that he was detained, restrained, confined, or being prevented from leaving. It is sufficient if he is informed of the false imprisonment later. Thus, a person may be falsely imprisoned while unconscious, asleep, or otherwise unaware and so forth. The person need not be aware so long as the false imprisonment is a fact or complete. If he learns about it from another person, he is entitled to sue.

In Dele Giwa v I.G.P, the plaintiff, who was a top flight journalist and columnist was arrested and detained by the police. He brought action for enforcement of his fundamental right to personal liberty and for damages. Jinadu J. held, that the defendants were liable. The plaintiff was entitled to his freedom and the sum of Nl0,000.00 was awarded for the unlawful arrest and detention of the plaintiff being compensation for the false imprisonment resultant loss of liberty, and the indignity to which he was subjected. See also Shugaba v Minister of Internal Affairs.

Other acts intended to cause physical or mental harm

There are instances in which a person intentionally and wilfully carries out an act to cause harm or injury to a person but these acts cannot be categorised as trespass to the person as they do not involve any direct act on the plaintiff, also they cannot be categorised negligent acts as they are wilfully carried out.

For example, in Wilkinson V. Downton, D by way of a practical joke, falsely told C, a married woman that her husband had met with an accident in which both his legs had been broken, was lying at The Elms at Leytonstone and that she was to go in a cab to fetch him home. The effect of this upon the claimant, who was found to be a person of normal fortitude, was that she suffered a violent shock. In holding D liable to C, Wright J said that the defendant wilfully inflicted physical harm to the plaintiff and on her legal right to safety and it is thus a sufficient cause of action, despite there being no justification alleged for the act.

Thus, acts such as the one in the case explained above would qualify as an act intended to cause physical or mental harm due to the difficulty or inability to classify it under trespass to person or negligence.

Here, liability arises for words calculated to cause physical injury or psychotic harm. The justification for liability is that it amounts to a wrongful interference to another’s personal safety and it is intended to cause harm. In order to satisfy the requirement under this rule, there must be an actual damage and an intention to cause harm or damage. An action would not lie for mere intentional harassment that does not result in physical harm or a known psychiatric injury or damage.

Other acts that do not give rise to physical or mental harm but which amounts to harassment have been legislated upon in the United Kingdom and liability will arise under the Protection From Harassment Act 1997. It has been adopted in the UK in the case of Majrowski V. Guys and St. Thoms NHS Trust.

It was held in the case of Wang V. Capsips Health NHS Trust that madness and unfriendliness leading to emotional distress was not regarded as amounting to injury calculated to infringe on a person’s right to personal safety.

Section 1 of the Act makes it an offence to pursue a course of conduct which the defendant knows or ought to know amounts to harassment of another and by Section 3 this is civilly actionable, leading to damages for any anxiety caused by the harassment and any financial loss resulting from the harassment.

Harassment there may be defined to include persistent behaviour that torments or threatens a person. These are capable of causing mental and physical discomfort.

Defences to trespass to person

The defence to an action for trespass to person includes:

Self-defence or Justification. Under common law, a person has a right of self-defence. The only requirement for a successful plea of self-defence is that the self-defence should be reasonable or proportionate. This includes self-defence and or the defence of another person, especially, where a person is morally or legally obliged to protect another person. However, only reasonable force may be used in self-defence.
Defence of property: A person may commit commensurate or reasonable trespass to person, such as assault, battery or false imprisonment in order to protect his property or the property of another person which he has a moral or legal obligation to protect. In England the common law right of self-defence has been supplemented by statute law by section 3(1) of the Criminal Law Act 1967. Thus, reasonable measures may be taken or reasonable force may be used to eject or deter a trespasser from entering a property.
Consent of the plaintiff Express or implied consent is a complete defence. Consent is a defence when it is obtained freely in the absence of fraud, trick, deceit, force, duress or undue influence and so forth. Consent is deemed in sports. Accordingly, consent is often a defence for injuries suffered in sports events. As a general rule participants in sports are deemed to consent to reasonable contact within the rules of the game except where the act is unreasonable, involves considerable hostility or is deliberate.
Medical Treatment: Medical Care and Medical Surgery: In medical care, a patient is usually deemed as having consented to the normal course of treatment for his ailment except where such treatment is outside the scope of the patient's express or implied consent. Thus, consent to medical care is consent to assault, battery and false imprisonment, but it is not consent to negligent medical treatment. As a result, treatment or surgical operation carried out in good faith with reasonable skill, knowledge and care for the benefit of a patient is a lawful excuse in a claim for trespass, because, these are contacts which are usually for the plaintiffs benefit.
Inevitable Accident.
Judicial Authority. Under judicial authority, such as a court order, warrant of arrest, prison sentence and so forth, lawful arrest may be carried out. Detention may be ordered and punishment may be imposed according to law. A judge or a magistrate acting within his judicial authority may grant a warrant of arrest and persons carrying out such an order of arrest may use reasonable force to detain the person named in the warrant. All convicts serving various terms of imprisonment are in jail pursuant to the judicial authority of judges and magistrates.
Lawful Arrest (See statutes such as the Criminal Code Act, Police Act, etc.), Detention, Stop and Search: All persons owe a duty not to disturb the public peace by committing crime or causing other breaches of peace and so forth. The police have powers under the Criminal Code Act, Police Act and other criminal statutes to arrest, detain, or stop and search a person in public where they reasonably suspect that a person has committed a crime, or maybe carrying a stolen, contraband or prohibited item, etc. The police and other law enforcement agents and private citizens have powers to make arrest with or without a warrant as the case maybe. A lawful arrest, detention, or stop and search and so forth are defences to assault, battery and false imprisonment.
Statutory or Lawful Authority. Trespass to person may be excused where it is committed in preservation of society (see (1999) Constitution, sections 33(2), 34(2), 35, 41, 44 & 45; Liversdige v Anderson and Brogan v UK), under any enabling statute for instance, under the Nigerian Constitution. Under the Nigerian Constitution, a person may be lawfully deprived of his personal liberty or his fundamental rights otherwise restricted in certain circumstances.
These include:
1. In connection with a criminal case by lawful arrest or in execution of the order or sentence of a court;
2. In a connection with infectious disease, or unsoundness of mind;
3. In connection with immigration law;
4. In connection with the education and welfare of infants or apprentices who are minors, etc.
Necessity. This is a rare defence. A defendant may show that he committed the trespass to person to avoid a greater harm, such as forcefully feeding a person to preserve the person's life. This was the situation in Leigh v Gladstone (1909) 26 TLR 139, where prison warders out of necessity forcefully fed the defendant who was on hunger strike whilst in custody in order to save her from dying from hunger.