Revisiting the Tortious Liability of Trespass to Person, Land and Chattels

CONTRIBUTED VICTOR ATANG

Introduction

The tort of trespass is one of the oldest torts under Common law. In recent times, it has taken three forms; trespass to person, to land and chattels. These forms of torts have similar elements to wit, there must be an element of intention, causing direct and immediate harm and being actionable per se, i.e. without proof of damage. Although these three criteria have not always been followed, – for example in the past, the courts have been willing to impose liability for trespass to the person where the tort has been committed negligently -, they are generally followed today.^[1] The principal aim of the tort of trespass is to vindicate the Claimant’s right to be free from interference either to his person or her person, property or goods and it is on this basis that the tort of trespass is said to be actionable per se, which implies that damage to the Claimant is inconsequential in the award of compensation. It is the wrongful actions of the defendant in interfering with a recognized legal interest possessed by the Claimant which triggers compensation. It is however pertinent to note that the Courts will generally only award nominal damages in trespass to land or goods if no damage exists.^[2]

This article critically examines the tort of trespass to person, land and goods and their defences as well as remedies available. For the purpose of clarification, the first part of this article will cover trespass to person and good while the subsequent will examine trespass to land.

TRESPASS TO PERSON

The tort of trespass to person protects the Claimant against interference with his or her person. It is committed intentionally and by direct and immediate actions that are actionable without proof of damage. The tort of trespass to person may take three different forms namely; battery, assault and false imprisonment. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person. A battery is the actual infliction of unlawful force on another person while false imprisonment is the unlawful imposition of constraint on another person’s freedom of movement from a particular place^[3] Assault and battery will be examined jointly as a result of the thin line of difference while false imprisonment will be examined separately.

ASSAULT AND BATTERY

Battery is the “direct application of any physical force to the person of another. For battery to be committed, there are a number of components that must be present. Force must be applied intentionally by immediate and direct means to another individual. Battery varies from the slightest contact with person to an aggravated contact. On the other hand, assault is an overt act indicating an immediate intention to commit a batter, coupled with the capacity to carry the intention into effect. There have been several debates as to whether assault and battery are either criminal or civil wrongs. This issue was led to rest in the recent case of FRSC & ORS V AKPOS^[4] where the Court of Appeal held that “it is trite that assault and battery qualify as both criminal and tortuous acts. So, it can arise in a criminal trial or a civil claim in tort. However, in the recent case of OSALADE V OSALADE^[5], the Court of Appeal opined that an allegation of commission of assault on a person is an allegation of the commission of a crime on that person by the Evidence Act and such an allegation whether in a civil or criminal proceeding must be proved beyond reasonable doubt and not on the balance of probability^[6]. Thus, in a civil action where the claim is on assault, the standard of proof is to prove beyond reasonable doubt.

ESSENTIAL REQUIREMENTS FOR ASSAULT AND BATTERY

In the case of TAIWO V ADEMUWAGUN^[7], the Court x-rayed and elucidated the important elements necessary to prove battery and assault. These elements are listed and briefly explained below

Immediate and Direct Force: For the claim of battery to succeed, it must be established that there was application of force on the Claimant.

What is the position of law regarding bodily contact during social events? Common forms of social touching that are reasonable and are generally accepted are not battery^[8]. In the British case of COLLINS V. WILCOCK,^[9] the Court opined that a broader exception has been created to allow for the exigencies of everyday life: jostling in a street or some other crowded place, social contact at parties and such likes. This exception has been said to be founded on implied consent, since those who go about in public places may be said to have impliedly consented to bodily contact of this type.

Reasonable Apprehension of Harm: This element applies to assault. It must be established to the satisfaction of the Court that threat or the use of force on the Claimant caused him to have a reasonable apprehension of immediate harmful or offensive contact. It is an act of putting another person in reasonable fear or apprehension of immediate battery by means of an act that amounts to an attempt or threat to commit battery.

Intention: The intention which is required in battery is not the intention to hurt the claimant, but the intention to apply physical force. The tort thus protects the Claimant’s dignity as well as bodily integrity

False Imprisonment

The tort of false imprisonment is concerned with depriving the Claimant of his right to freedom of movement without lawful justification^[10]. A complete restriction of this freedom, unless it is expressly or impliedly authorized by law, will render the defendant liable. Imprisonment in the sense of incarceration is not necessary neither is the use of force. Submitting to the control of a policeman at the instigation of the defendant is sufficient^[11]. The requirement for a claim of false imprisonment to be successfully granted is examined below:

A Total Restrain of the Claimant’s Movement: in order to succeed in a claim of false imprisonment, the Claimant must show that his freedom was absolutely restricted as false imprisonment implies a complete deprivation of liberty however short and without lawful cause. The person so restrained is said to be a prisoner so long as he has no liberty to freely go at all times to the places he wishes to. The prisoner may be confined within a definite space by being put under lock and key or his movements may simply be constrained by the will of another^[12].

Without Legal Justification: the burden of proof lies on the defendant to justify the lawfulness of the arrest and the Claimant is only required to show that he has been denied his movement. The tort of false imprisonment consists of the act of arrest and detention or imprisonment of a Claimant without lawful justification by the law enforcement agencies or an individual as the case may be^[13]. Thus, the requirement of lawful justification is a sword as well as a shield.

DEFENCES TO TRESPASS TO PERSON

There are certain defences which are of particular importance in actions for trespass to the person. These defences include:

Consent: This is an obvious defence to assault and battery. If a person consents either expressly or by implication, a claim for trespass to person will unavoidably fail. It is on this basis that in the medical field, medical practitioners can ensure that they commit no tort against patients while operating by asking them to sign a consent form^[14].

Lawful Authority: This defence generally applies in relation to false imprisonment. Where the defendant has specific authority to deprive the claimant of his complete freedom of movement. Thus, a lawful arrest will not render a police officer or a private individual liable to false imprisonment^[15]

Defence of a Person or Property: The defence of self-defence is an age-long legal principle and is also applicable in the tort of trespass to person and equally extends to the defence of property. However, the key to a successful defence of self-defence is the element of ‘reasonableness’, as the defence will only operate if the force used by the defendant is proportionate to that being applied by an attacker. It must be shown that the battery was committed in actual defence from an attack and not by way of retaliation and that it is reasonably commensurate with the attack^[16].

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.

Remedies Available to Claimant in An Action of Trespass to Person

Upon a successful claim against a Defendant for trespass to person, the Court is generally inclined to grant damages in order to restitute the defendant to the position as if such never occurred. The Court can grant a permanent injunction, restraining the Defendant from further trespassing on the person of the Claimant.

TRESPASS TO CHATTELS.

Anything movable that can be controlled, owned, or possessed aside from people, land, and immovable property is considered a chattel. Examples include personal gadgets, clothes, pieces of jewelry, food items, bags etc. The tort of trespass to chattel may be defined as a direct and wrongful interference with a chattel in the possession of the plaintiff, such interference being either intentional or negligent. The interests of the plaintiff that the law protects are: (1) his interest in retaining the possession of the chattel; (2) his interest in the physical condition of the chattel and (3) his interest in protecting the chattel against intermeddling. Trespass to chattels may take various forms such as destroying, damaging or wrongful moving them from one place to the other^[17]. There are basically two heads of the tort of trespass to chattels to wit; trespass to chattels per se, and conversion. These heads of trespass to chattel will be examined briefly below:

Trespass to Chattel Per se: Trespass to chattel is any direct and unlawful interference with the chattel in the possession of another person and such interference may either be intentional or negligently. To succeed in a claim of trespass to chattel, the Claimant must establish that the defendant made a volitional movement that dispossessed the claimant of the chattel and that the defendant intermeddled with the chattel^[18]. The implication of the foregoing is that anyone who has possession of a chattel may sue any other person who meddles with the chattel. However, in an action for trespass to chattel, the Defendant may escape liability by pleading a valid defence. Some of the defences available to the Defendant include Jus tertii which implies the title or better right of a third party, provided that the Defendant has the authority of such third party^[19]. The defendant can also plead subsisting lien on the chattel as a valid defence. On the failure of the Defendant to proffer a valid defence, the Claimant is entitled to remedies such as payment of damages, replacement of the chattel, and repair of the damage effected on the chattel.

Conversion: conversion is an act of willful interference, without lawful justification with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of the chattel. A cause of action in conversion is based on an unequivocal act of authority by a defendant of the goods of the claimant without any authority or right in that behalf. In order to secure liability for the tort of conversion, the Claimant need not show that the Defendant intends to question or denies his right to the good or property, it is enough that his conduct on the chattel is inconsistent with his right such as attempting to sell the property.^[20]

Essential Ingredient of Conversion

For the tort of conversion to be committed, the following ingredients must be present and proved:

1. The goods belong to the Plaintiff
2. The goods do not belong to the defendant
3. The goods are taken out of the possession of the owner without consent
4. The defendant shows permanent or temporary dominion over the goods
5. Specific demand of the goods by the Plaintiff
6. Unequivocal denial to surrender the goods^[21]

In view of the fact that ownership is central to the tort, a plaintiff who cannot prove ownership cannot succeed in an action on the tort of conversion. Demand is also a vital ingredient. There cannot be conversion until the plaintiff formally makes a demand of the goods, followed by a refusal by the defendant to surrender them. That is when the intention of the defendant to deny the plaintiff’s right to ownership of the goods comes to the open.

Conversion and Intangible Assets

The relevant question here is whether an intangible asset such as money in the bank can be a subject of conversion. The original common law rule was that a claim for conversion could not be sought unless the plaintiff’s property was tangible^[22]. However, with the passage of time, this position has been modified and the current trend now is that intangible assets are susceptible to conversion. The first relaxation of the rule was with respect to the conversion of a document in which intangible rights were merged so that the one became the symbol of the other – as in the case of a stock certificate and with the effluxion of time it extended to intangible rights to which a tangible object, converted by the defendant, was highly important as in the case of a saving book, an insurance policy, tax receipt, account book etc.

There have been debates among scholars on whether money in the bank is an intangible asset subject to conversion. On this issue, the position of law is that where a claimant can show that money in issue is specific and capable of identification, an action for conversion will lie^[23]. Where money, an intangible asset, is documented and manifested by a tangible instrument such as a written agreement, a cheque, or a promissory note, the law is that it is identifiable and may be converted.

Hence, an action for conversion of money consists of three elements (i) specific and identifiable money; (ii) a deprivation of money belonging to another; (iii) an unauthorized act which deprives another of his money. So, where a banker has not handled actual cash or notes but has merely made the appropriate entries by way of credit or debit balances, the Courts will treat the conversion as being of goods, that is of the piece of paper, the cheque, under which the money was transferred, and the value of the goods converted as being the sum represented by the cheque^[24].

Conclusion

This article has copiously examined the issues relating to trespass to persons and chattels. It has been established that the principal aim of the tort of trespass is to vindicate the Claimant’s right to be free from interference either to his person or her person, property or goods and it is on this basis that the tort of trespass is said to be actionable per se which implies that damage to the claimant is inconsequential in the award of damages for trespass. This article has also identified the different forms of trespass to person such as assault, battery, false imprisonment and the essential element required in proving a claim for this tort as well as the defences a defendant can rely on in avoiding liability. On a final note, an attempt has been made to x-ray the position of law with regard to conversion of tangible assets with the aim of enriching the jurisprudence of the tort of trespass to chattel.

Reference

1. Paula Giliker: Torts; (Sweet and Maxwell, 2014)
2. W. Page Keeton et al, Professor and Keeton on Torts (West Publishing Co 1984 5^th Ed)

THE TOPIC IS TOO BROAD FOR AN 8-PAGED WORK.

1. Paula Gilika, Tort (Sweet and Maxwell 2014) ↑
2. Naoc Ltd V. Nwagboa (2021) LPELR-56536 (CA) ↑
3. Taiwo V Ademuwagun (2014) LPELR-41110 (CA) ↑
4. (2021) LPELR-52917 (CA) ↑
5. (2020) LPELR- 51165 (CA) ↑
6. Ibid ↑
7. (2014) LPELR- 41110 (CA) ↑
8. Law of Tort- Nature and Functions. Available at https://www.learnnigerianlaw.com/learn/law-of-torts/nature-and-functions accessed 22/01/2024 ↑
9. (1989) 1 W.L.R 1172 ↑
10. Matazu V Mazoji (2014) LPERL- 23071 (CA) ↑
11. Duruku V Nwoke (2015) NWLR (Pt 1483) P 417 @ 429 ↑
12. Orji V. Amara (2016) NWLR (1531) P 21 @ 28-29 ↑
13. Zenith Int’l Bank Ltd V Alobu (2017) NWLR (Pt 1554) P 135 @138 ↑
14. Paula Giliker, Torts; (Sweet and Maxwell, 2014 ) ↑
15. Police Act, 2004 ↑
16. Ahmed V The State (1999) LPELR-2632 (SC) ↑
17. SPDC V Okonedo (2007) LPELR – 8198 (CA) ↑
18. Amico Construction Company V Actee Int’l Ltd (2015) 17 NWLR (P. 146) @ 151 ↑
19. COP V Oguntayo (1993) 6 NWLR pt 229 @ 259 SC ↑
20. Ezeugo V Agim (2015) LPELR – 24572 (CA) ↑
21. Ezeugo V Agim (2015) LPELR – 24572 (CA) ↑
22. W. Page Keeton et al,Professor and Keeton on Torts (West Publishing Co 1984 5^th Ed) P. 91-92 ↑
23. GTB V Focused Experiential Marketing Ltd (2021) LPELR (CA) ↑
24. Ibid ↑