LEGAL IDEAS FORUM

An Exposition of Trespass to Person under the Nigerian Legal Framework ;its operations and defences. By Ibrahim Samson Bwala


TRESPASS TO PERSON

Trespass to the Person under The Nigerian Law of Tort encompasses several subjects; its three basic components will be examined:

1. Assault
2. Battery
3. False Imprisonment

ASSAULT & BATTERY

It can be categorically said that two terms are devoid of complexities in terms of their simple definitions.  Battery is the Intentional application of force to another person while Assault is when you intentionally another person in fear of an imminent battery

As a well know fact, in Law the definitions or literary connotation of a word or term is not always in tandem with that contained in the dictionary. The dictionary definition explains Assault as “the direct application of force”   : “A violent onset or attack with physical means, as blows, weapons, etc.; an onslaught; the rush or charge of an attacking force; onset; as, to make assault upon a man, a house, or a town. A violent onset or attack with moral weapons, as words, arguments, appeals, and the like; as, to make an assault on the prerogatives of a prince, or on the constitution of a government.”

From the definition of what Assault means & that as contained within the Law of Tort, both are entirely different. The popular English dictionary combines both the definitions of what Assault & Battery means. The word “assault” is statutorily defined in section 15(1) of the Robbery and Firearms (Special Provisions) Act as follows:

 “assault” means striking, touching, moving or otherwise applying force, including heat, light, electrical force, gas, odor, or any other substance or thing whatever, if applied in such a degree as to cause injury or personal discomfort to the person of another, either directly or indirectly without his consent, or with his consent if the consent is obtained by fraud, or any bodily act or gesture, amounting to an attempt or threat to apply force of any kind as aforesaid to the person of another without his consent, in such circumstances that the person making the attempt or threat has in fact or apparently a present ability to effect the purpose”

 Assault being a Tort, gives rise to liabilities & Damages. What then constitutes the Tort of Assault? What instance would be sufficient for a claimant to seek redress in a court of law? For assault to be committed, the claimant must be in reasonable apprehension of an immediate battery. The test for reasonable apprehension is an objective one. If the defendant does not have the means to carry out the threat, then no assault is committed see the case of Thomas v National Union of Mineworkers [1985] 2 All ER   1.

 However in addition to the principle laid down in Thomas v National Union of Mineworkers (Supra) where the defendant attempts to land a blow on the claimant but is restrained by a third party, the tort of assault is committed see Stephens v Myers (1830) 4 C&P 349. Passive obstruction, such as where a police officer blocks a person from entering a room, is not assault see Innes v Wylie (1844) 1 C&K 257. Where a loaded gun is pointed at the claimant, an assault is committed. Is there an assault if the gun is unloaded? In principle the answer should be yes, provided the Claimant is unaware of the fact the gun is not loaded. There is dictum to the effect that this is not an assault as held in the case of Blake v Barnard (1840) 9 C&P 626, but in a criminal case it was stated that enough grounds are present to constitute the Tort of Assault, this was held in R v St George (1840) 9 C&P 483.

    Most Jurists are of the opinion that the latter case of R v St George  is correct and should be upheld as a guiding principle. There is some difficulty with whether words alone can amount to an assault. This contention dates back to an old case where it was said that no words can constitute the Tort of Assault R v Meade (1823) 1 Lew CC 184. Many Jurists feel that this is wrong and where words spoken by the defendant induce fear in the claimant, this should be actionable as held in the case of Khorasandjian v Bush [1993] 3 WLR 476. Support for this can be found in a criminal case where it was considered that the words, get out knives, would constitute an assault R v Wilson [1955] 1 WLR 493 What would be the position with a series of silent phone calls which induce fear in the victim? If words cannot amount to an assault, how could silence?  The issue was raised in a criminal case R v Ireland [1998] AC 147 and Lord Steyn doubted the statement in the R v Meade  as being unrealistic and indefensible. If this is the case, then a person who intends by their silence to cause fear and that fear leads to an apprehension of immediate personal violence, then the caller may be guilty of an assault. The Tort of Assault therefore gives rise to liabilities; an allegation of the commission of assault on a person is an allegation of the commission of a crime on that person by the provision of Section 138 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. Such an allegation whether in a civil or criminal proceeding must be proved beyond reasonable doubt and not on a balance of probability, this position is firmly supported in the case of Agbonavbare v. Ogbebor (2007) 8 NWLR (Pt. 1037) pg. 605 Battery on the other hand, has distinctions from what Assault is known to be. 

In The Case of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439. The Court held battery to be; _The direct and intentional application of force to another person without that persons consent. The application of the force must be voluntary and intentional. The original force may be unintentional but a failure to rectify the situation may render it a battery. Court further held in the case of EBULUE & ORS v. EZEBUO (2018) LPELR-44685(CA) “Any unlawful attack or application of force or violence to the person of a claimant with or without actual injury constitutes assault for which the claimant is entitled to damages in a civil action. See   F. B. N.  PLC & ANOR. V. ONUKWUGHA (2005) 16 NWLR (PT. 950) 120 AT 152 NDIBE & ORS. V. NDIBE (2008) LPELR – 4178 CA) AQUA V. ARCHIBONG & ORS. (2012) LPELR – 9293 (CA) and ESI V. CNPC/BGP INT. & ANOR. (2014) LPELR  22807 (CA).

MENTAL STATE REQUIRED FOR BATTERY

The courts have always been faced with the problem of distinguishing those contacts
Which are part of everyday life and those which are unacceptable and illegal? This presents difficulties for the courts. Contact between persons ranges from violent assaults through to accidental bumps in crowded streets. In between are people who play practical jokes, people who indulge in sexual harassment and doctors who need to treat unconscious patients. How is a court to draw a line?
In Wilson v Pringle [1986] 2 All ER 440 the defendant, as a practical joke, pulled the plaintiffs schoolbag from his shoulder, causing injury. The Court of Appeal held that the act of touching the plaintiff had to be intentional and the touching had to be a hostile touching. The relevant intention was the intention to do the act. There need be no intention to cause damage. A blow struck by a person undergoing an epileptic fit would therefore not be trespass, as there would not be the relevant intent. Hostility was not to be construed as malice or ill-will and would be a question of fact in each case. The act of touching in itself might display hostility. If not, then the plaintiff must plead the facts which they claim demonstrate that the touching was hostile. The intention of the Court of Appeal was to remove the necessity for the courts to find implied consent in some cases where they did not wish to hold that a touching was a battery. The requirement of hostility was supposed to remove the need for implied consent because a touching which is hostile can scarcely be said to be consented to. The attempt to frame a test of this nature has not been particularly successful.
 The first problem is what is meant by hostile. The Court of Appeal in the case of Wilson v Pringle [1986] 2 All ER 440 gave a number of examples of what it is not, but only one example of what it is. A police officer, who touches a person with the intention of restraining them, with no legal power to do so, is acting with a hostile intent. Battery has always operated against the person who pushed unwanted attention on a person as well as against the violent person. The unwanted kiss is as actionable as the unwanted punch. If hostile is taken in its literal sense, then the practical joker and the molester could be immune in this tort. The dividing line in Wilson v Pringle was drawn at what was generally acceptable in the ordinary conduct of daily life. However, what is perfectly acceptable to one person may be totally repugnant to another . However, this position which necessitate for the presence of hostility, was unwelcomed in the case of  F V WEST BERKSHIRE HEALTH AUTHORITY [1989] 2 ALL ER 545 The hostility test has not been particularly well received by the House of Lords. One of the areas in which it was thought it could operate was medical cases. Where a doctor had to touch a person in an emergency, instead of saying there was an implied consent, the court would say that there was no hostility on the part of the doctor and therefore no battery. This view has now been rejected by the House of Lords in the F v West Berkshire Health Authority. Lord Goff stated:
 And it has recently been said that the touching must be hostile…I respectfully doubt whether that is correct. A prank that gets out of hand, an over-friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it, all these things may transcend the bounds of lawfulness, without being characterized as hostile…In Wilson v Pringle the Court of Appeal considered that treatment or care of such persons [the mentally disordered] may be regarded as falling within the exception
Relating to physical contact which is generally acceptable in the ordinary conduct of everyday life. Again, I am, with respect, unable to agree. That exception is concerned with the ordinary events of everyday life, jostling in public places and such like, and treatment, even treatment for minor ailments, does not fall within that category of events. The general rule is that consent is necessary to render such treatment lawful

The approach of Lord Goff was confirmed in Wainwright v Home Office [2003] 4 All ER969 by Lord Hoffmann. The present position is not clear. In medical cases the hostility requirement has been rejected. In order to avoid an action for battery, a doctor must show either that consent was given for the touching, or that the touching was necessary in the best interests of the patient. In other cases it appears that Lord Goffs general exception for everyday contact may take precedence over hostility. This position is still obtainable Within the Nigerian Law of Tort; the direct application of force is termed as Battery while any attempt to put an individual in a state of fear especially in anticipation of an impending act of Battery is “Assault”. I.E If Mr. A threatens to Punch Mr. B in the face; Thats Assault If he eventually Punches Mr. B and theres actual physical contact or application of violence; thats Battery. Where Both is proved or said To have been done, thats Assault & Battery This position is well in line with Section 252 of the criminal code as applicable in Southern Nigeria & Section 264 of the Penal code as applicable in Northern Nigeria.

 Furthermore, in line with all submitted principles & positions, an individual alleging to have suffered from the Tort must bear the burden of proof. The court in ENEJI v. STATE (2013) LPELR-20393(CA) held  

“The essential ingredients or elements which constitute the offence and which must be proved beyond reasonable doubt in order to secure conviction for the offence are:- a) that there was a strike, touch or application of any kind of force by the accused person on another person 

b) that harm was caused to that other person thereby, and

c) the strike, touch or application of the force was not authorized, justified or excused by law. These elements or ingredients must be established to the satisfaction of the court, beyond reasonable doubt in the sense that the evidence must be strong and cogent in showing that the accused person and no other, in fact committed the offence. The burden on the prosecution does not shift but remains on it throughout the trial and can only be discharged by the production of material, credible, sufficient and admissible evidence which leaves no other reasonable possibilities than that the accused person committed the offence. Nothing short of this would suffice this position is further established in the cases of Baker v. State (87) 1 NWLR, 579; Agbo v state (2006) 6 NWLR (1977) 545; Uwwagboe v State (2007) 6 NWLR (1031) 606; Uluebeka v State (2011) 4 NWLR (1237.

 Within the ambiance of the Law when a party is aggrieved or accuses someone of any of the two Torts, he or she must not necessarily sue for both Torts, as one act can be committed without the other. For a more factual account, see the cases of Stephen V Myers (1830) 172 E.R. 735, F. B. N. PLC & ANOR. V. ONUKWUGHA (2005) 16 NWLR (PT. 950) 120 AT 152( F- G). NDIBE & ORS. V. NDIBE (2008) LPELR – 4178 CA) AQUA V. ARCHIBONG & ORS. (2012) LPELR – 9293 (CA) and ESI V. CNPC/BGP INT. & ANOR. (2014) LPELR – 22807(CA). 

I would sum up Assault & Battery with the words of My Lord, ARIWOOLA, and J.C.A in the case of NDIBE & ORS. V. NDIBE (Supra) Assault, which can be a tort or a criminal act, is “the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact. It may also mean the act of putting another person in reasonable fear or apprehension of any immediate battery by means of an act amounting to an attempt or threat to commit battery.” See; First Bank of Nig. Plc. & Anor. V. Ernest G.A. Onukwugha (2005) 16 NWLR (pt 950) 120 at 152. On the other hand, battery, which is of criminal law, is the use of force against another, resulting in harmful or offensive contact

FALSE IMPRISONMENT

False Imprisonment as clarified by the learned Justices of the court of Appeal in the case of OKEKE v. IGBOERI (2010) LPELR-4712(CA) “The tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the imprisonment has no right in law to imprison that other – see FBN Plc v. Onukwugha (2005) 16 NWLR (Pt. 950) 120. 

Also in the decided case of  ADEYEMO & ANOR v. AKINTOLA (2003) LPELR-10905(CA) the court held False Imprisonment as “False imprisonment may be defined as the restraint of a man’s liberty whether it be in an open field or in a cage. The relevant fact or to look for is whether the victim had at the time liberty freely to go at all times; as enshrined in our 1999 Constitution, see section 35(1). However the detention must be total, in that there should be no means of escape from the detention known to the victim, see Meering v. Graham While Aviation Coy. Ltd. (1920) 122 Law Times 44, 51 and 53.” In the Appeal court case of EBULUE & ORS v. EZEBUO (2018) LPELR-44685(CA) the court held False Imprisonment to be “An act of restraining or restricting or confining the movement of a person within an area without lawful or legal authority or justification. It is an unlawful act for a private person or a law enforcement agency or any governmental agency to restrict the movement or exit of a person from an area against his will without any lawful justification. See CLIFFORD OKEKE V. LUSY IGBOERI (2010) LPELR – 4712 (CA). UAC OF (NIG.) PLC V. SOBODU (2007) 6 NWLR (PT. 1030) 368 AT 394 (E-F). OTERI V. OKORODUDU & ANOR. (1970) LPELR – 2824 (SC).

 Therefore, False Imprisonment transcends beyond its literal connotation as “Incarceration in a security or correctional facility”. False Imprisonment entails the restriction of an individuals freedom & movement not necessarily a Security Holding Facility. I.E If a mother locks her daughter in the house in order to prevent her from going outside to play; that has constituted False Imprisonment. In order for an allegation of False Imprisonment to hold substance it must be proven that the plaintiff’s freedom of movement as absolutely restricted as a partial Restraint. For example if Mr. A locks Mr. B in a room, for Mr. B to succeed in an action against Mr. A, he must prove that he had no means of escape (No window, spare key or means of escape was possible).  Furthermore, the Tort may be committed without the use of force or coercion of any kind. A good example is in the case of a police officer who illegally detained a citizen for a prolonged period without a charge or substantial cause. In proving a case of False Imprisonment, it is more often than not a question of Facts. The court will take into account the detailed events surrounding the allegation. 

Therefore a claim in false imprisonment lies at the suit of the person unlawfully imprisoned against the person who causes the imprisonment Halsburys Laws of England 3rd Edn. P 764 para. 1266 -1267; Iwunwah v. Iwunwah (1999) 13 NWLR (Pt. 635) 425. What a party who claims to have suffered false imprisonment must prove to succeed has become well established by the courts over the years. _One of the well known principles is that in order to succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him Mandillas & Karaberis Ltd. v. Apena (1969) 1 NMLR 199 at 203 per Lewis, JSC (relying on Danby v. Beardsley (1880) 43 LJR 603; Okonkwo v. Ogbogu (1996) 5 NWLR (Pt. 449) 420 at 433 SC, also reported in (1996) 37 LRCN 580 at 600. Such an action lies, not only against the party who physically does the arrest and detention, but also the person who directly and actively instigates or is instrumental to the commission of the tort of false imprisonment as held in Onyedinma v.Nnite (1997) 3 NWLR (Pt. 493) 333 at 346 ; Abdullahi v. Raji (1998) 1 NWLR (Pt. 534) 481 at 492.

If a person orders a policeman to arrest another person, it is an imprisonment by the person ordering the imprisonment as well as by the policeman. This will ground an action of false imprisonment. Walters v. W.H. Smith & Son Ltd. (1914) 1 KB 595. Merely making a report to the policeman, who on his own responsibility takes the plaintiff into custody, is no imprisonment by the person who made the report. There is no doubt that a person who merely gives information without more, which leads to the arrest of a suspect by the Police acting within their own mandate and responsibility, cannot be liable in an action for false imprisonment.

DEFENCES TO TRESPASS TO THE PERSON

Under the Nigerian Law of Tort, several defenses to Trespass to the person exits, they include:

1. Defense of a person or property
2. Parental or other authority
3. Consent
4. Lawful arrest
     – Arrest with a warrant
     – Arrest without a warrant
     – Arrest through ministerial officers
5. Contributory Negligence

1. Defense of a person or property

The Defense of property comes in when an act of Assault & Battery is committed in Defense of oneself or a property. Provided that : The battery must be committed in actual Defenses from attack and not by way of retaliation & the self Defense must be reasonably commensurate with the attack see Cockcroft V Smith (1705) , 91 E.R.541] In AHMED V. THE STATE (1999) LPELR-263(SC) the court held  “It must be emphasized that where a person puts a defense of his property, the law allows him the use of reasonable force in defense of the said property provided no harm is inflicted on the person whom the property is being protected. It follows that the force employed as well as the nature of the object (i.e. weapon) used by the Appellant must not be out of proportion with the way the Appellant employed to defend the said property otherwise this defense will not avail him.” It must be ensured that only a force which is Necessary is allowed for this Defense to stand. I.E if Mr. A enters Mr. B farm with mischievous intent, Mr. B is advised to first ask him to leave rather than pick his shotgun and shoot him. The latter option might be acceptable only after the former has been employed.

2. PARENTAL OR OTHER AUTHORITY

A parent or guardian is lawfully allowed to limit, or confine a child so long as an unreasonable amount of force won’t be used. This is further substantiated in the provisions of The Child Rights Act of 2003. S.20. Every parent, guardian, institution, person and authority responsible for the care, maintenance, upbringing, education, training, socialization, employment and rehabilitation of a child has the duty to provide the necessary guidance, discipline, education and training for the child in his or its* *care such as will equip the child to secure his assimilation, appreciation and observance of the responsibilities set out in this Part of the Act. Parents, teachers and guardians have such responsibility to discipline the child for misbehavior or in prevention of negative repercussions which may arise from the child’s decisions. Ryan V Fildes (1938) 3 ALL E.R.517. SECTION 295(1) of the criminal code  provides the a blow or other force not extending to a wound or grievous bodily harm may be justified when administered by a parent for the purpose of correcting his child.

3. CONSENT

The court in OGUNDIPE v. ODUWAIYE & ANOR (2013) LPELR-20474(CA) defined Consent”_ with the help of the Oxford English Dictionary as, “Consent merely means to agree or to permit someone to do something. (See Oxford Advanced Learner’s Dictionary (7th Edition) at 309).”

Where the plaintiff gives his consent to an act of battery, this will be a suitable Defense. I.E   willful consent is a boxer in a ring, or a footballer on the pitch. However, damages can be sought for if an offence of a deliberate foul is alleged & proven.  Express consent does not present problems where the claimant is legally capable of giving it. A surgeon will be protected from an action in battery by the signing of a consent form by the patient. 


Implied consent presents more difficulties. It has been rejected in favor of necessity in medical cases. A participant in a sporting event is said impliedly to consent to contacts in accordance with the rules of the game. A punch thrown at an opponent will not be within the rules and there will be a battery committed see. R v Billinghurst [1978] Crim LR 553. In boxing no action will lie for a punch within the rules, as a participant consents to this by getting into the ring. But a foul punch is not consented to and may give rise to a battery action. Any consent given will be limited to the act for which permission is given. A customer going to the hairdresser consents to having their hair cut and any other treatment they
Specifically agree to. But a customer who gives consent for a permanent wave does not agree to a tone rinse. The hairdresser will be liable in battery. see  Nash v Sheen [1953] CLY 3726. The consent must be real and not induced by duress, fraud or misrepresentation. If Consent of any kind for any purpose is obtained by fraud or deceit, it becomes void and any crime committed becomes action able.

4. LAWFUL ARREST

Where in the course of an arrest, it is alleged that some actions constituting False imprisonment, Assault & Battery is committed the defendant then proves. Otherwise any such action which may be committed during a lawful arrest does not constitute a crime. In the case of ANOLIEFO v. ANOLIEFO & ORS (2019) LPELR-47247(CA) the court held “As rightly stated by the Court below, the law is settled that when a person claims that he has been unlawfully arrested and detained and the fact of arrest and detention is admitted, the burden is on the person who effected the arrest and detention to prove the legality of the arrest and detention. In ENE & ORS v. BASSEY & ORS (2014) LPELR-23524(CA) the court further held “An arrest properly made cannot constitute a breach of fundamental rights. A citizen who is arrested by the police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the police in Court for the breach of his fundamental rights.” See Okaro vs. G.O.P. & Anor. (2001) 1 CHR.

5. CONTRIBUTORY NEGLIGENCE

This defense will apply where the damage which the claimant has suffered was caused partly by their own fault and partly by the fault of the defendant. In order to establish the defense, the defendant must prove that the claimant failed to take reasonable care for their own safety and that this failure was a cause of their damage. If contributory negligence is established, the modern position is that the claimant will have their damages reduced by the court in proportion to their fault. If they would have received £10,000 but were found to be 25 per cent contributory negligent, their damages will be £7,500. This was not always the case. At common law, if the court found that the claimant was partially to blame for their injuries, they received nothing at all. Contributory negligence operated as a complete defense.


In Butterfield v Forrester (1809) 11 East 60: The plaintiff rode his horse violently and collided with a pole which the defendant had negligently left in the road. It was held that if the plaintiff had used ordinary care the accident would not have happened. The plaintiff was therefore guilty of contributory negligence and could recover nothing. After this the law became increasingly convoluted as the courts tried to escape the rigors of a rule which meant that the court had to make a finding in favor of one party or the other. The rule was all or nothing. In 1911 courts were given a statutory power to apportion damages in cases of collision at sea (Maritime Conventions Act 1911). In 1945 a general power to apportion damages was given to the courts by the Law Reform (Contributory Negligence) Act 1945. Section 1(1) provides: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage.

ABOUT THE AUTHOR 

IBRAHIM SAMSON BWALA is a law student of Ahmadu Bello University, he is a seasoned legal author and writer.



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