FALSE IMPRISONMENT AND INTENTIONAL HARM TO THE PERSON

TABLE OF CONTENTS

• Introduction

2.0       Objectives

• Main content
• Definition of false imprisonment
• The purpose of the law of false imprisonment
• Defences to trespass to the person
• Remedies for trespass to the person

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignments

7.0       References and further reading

INTRODUCTION

In this unit we shall consider the third type of trespass to the person which is false imprisonment.

OBJECTIVES

By the end of this unit you should be able to:

• define false imprisonment;
• explain the purpose of the tort of false imprisonment; and
• enumerate the defences and remedies for trespass to the

MAIN CONTENT

Definition of false imprisonment

False imprisonment is denying a person freedom of movement or personal liberty without lawful justification. False imprisonment is the total restraint of a person without lawful justification. It is the unlawful bodily restraint, imprisonment or arrest of a person. It is also the restraint of another person without his consent and without lawful justification. Any detention, bodily restraint, denial of personal liberty, or freedom of movement of a person in any place and in any form without lawful justification amounts to false imprisonment.. Thus, any unlawful bodily restraint, or confinement of a person, however short the period of time is false imprisonment.

The imprisonment is false because it is not right. It is a wrong done to the person who is restrained. False imprisonment of a person is a breach of the fundamental right to personal liberty guaranteed in Chapter IV of the Nigerian Constitution and by the constitutions of many other countries. It includes detention by government as well as a detention by a private person or individual.

The act of false imprisonment must be direct, though it is immaterial whether it was done intentionally or negligently. Thus, any unlawful bodily restraint of a person in any place or from any place against his will may be false imprisonment. Like assault and battery, false imprisonment is actionable in itself without the plaintiff having to prove harm or damage. 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 such as in a street.

Lord Edward, Coke CJ in Inst. 2, Statutes of Westminster II, C. 48, clearly explained the law thus:

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

Similarly, Sir William Blackstone (1723-1780) the eminent English jurist clearly stated the law thus:

"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”. (Blackstone. III p. 127)

Some of the characteristics of false imprisonment are;

1. Depriving another person of his right to personal liberty and freedom of movement without just cause.
2. Compelling a person to remain where he does not wish to remain or to go to where he does not wish to go.
3. Restraint need not be in any cell or prison but may be in the open street.
4. There need not be battery.
5. The use of authority, any influence, order, trick, or request is sufficient so long as the person is available to his captor.
6. The person need not be aware that he is being detained at the time. See Meering v Graham White Aviation Co (1919)" 122 LT
7. The restraint must be total or complete. See Bird v Jones (1845) 7 QB 742; 115 ER 668.

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.

SELF ASSESSMENT EXERCISE 1

Define false imprisonment.

The Purpose of the Law of False Imprisonment

The purpose of the tort of false imprisonment is to protect the right to personal liberty and right to freedom of movement. Thus, 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.

John Lewis & Co. Ltd v Timms (1952) AC 676 HL.

The plaintiff, a lady and her daughter were detained for sometime 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 (1958) 1 QB 496; Collins v Wilcock (1984) 3 All ER 374; Weldon v Home Office (1990) 3 All ER 672; Hague v D.G. of Parkhurst Prison (1991) 3 All ER 733 HL; and R v Self (1992) 1 WLR 657 CA.

In Dumbell v Roberts (1944) 1 All ER 326, 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 (1953) QSR 26 Queensland, Austrialia, 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 (1954) 21 NLR 19, 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. The Guardian 17/12/97.; and Liversidge v Anderson (1942) AC  206 HL.

In Union Bank of Nigeria Ltd & Anor v Ajagu (1990) 1 NWLR Pt 126, p. 328 CA, 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 inspite of the plaintiff’s entreaties to be allowed to leave. The plaintiff spent sometime 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.

The Queen v Lambo Sokoto (1961) WNLR 27, 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. See Bird v Jones (1848) 7 QB 742. Where there is a reasonable route, exit or means of escape, there is no false imprisonment. See Robinson v Balmain Ferry Co. (1910) AC 295 PC. 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. (1920) 122 LT 44, 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 (1845) 7 QB 742; 115 ER 668,

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 (1699) 91 ER 1394, 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 (1858) 140 ER 1052, 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. (1915) AC 67,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. See Herd v Weardale Steel, Coal & Coke Co. (Supra) and Holden v Chief Constable of Lancashire (1986) 3 All ER 836. 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. See Aigoro v Anebunwa (1966) NNLR 87

In Aigoro v Anebuwa (supra), 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 (1964) Gleaner LR 145, 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

Generally, mere words without more do not constitute false imprisonment.

In Genner v Sparkes (1704) 91 ER 74, 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 (1824) 171 ER 930 and 1141, 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 Irrelevant

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. See Meering v Graham White Aviation Co (1920) 122 LT 44; and Murray v Minister of Defence (1988) 2 All ER 521. Constrast with Hering v Boyle (1834) 149 ER 1126.

In Dele Giwa v I.G.P Unrep Suit No. M/44/83 of 30/7/84, 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 (1981) NCLR 459.

In C.O.P. Ondo State v Obolo (1989) 5 NWLR pt 120. p. 130 CA, the plaintiff respondent was routinely picked up as a suspect whenever there was a case of robbery. He applied and obtained leave of the High Court to enforce his fundamental rights against the police to show cause why his right to personal liberty should be breached by being unconstitutionally and unlawfully arrested and detained on diverse dates without being informed of the offence he had committed, charged or brought before a court of competent jurisdiction. On appeal, the Court of Appeal held that the fundamental rights of the respondent had been infringed without reasonable and probable cause. Damages of N17,500.00 was awarded for the unlawful arrests and detention of the respondent.

In this case SALAMI JCA as he then delivered the judgment of the Court of Appeal and stated the law that:

"The test as to what is reasonable belief that the respondent has committed an offence is objective. It is not what the appellant considered reasonable, but whether the facts within their knowledge at the time of arrest disclosed circumstances from which it could be easily inferred that the respondent

committed the offence. See Oteri v Okorodudu (1970) 1 All NLR

199. The burden of proving the legality or constitutionality of the arrest and the imprisonment is on the appellants. This cannot be successfully done without disclosing to the trial court in their counter affidavit what the respondent did... The wrong assumption is that it was for the respondent to show that the arrest was unlawful... It is a matter for the courts to determine whether or not there is a good ground for the arrest and it cannot do so if the party who knew the reasonable ground for arresting the respondent holds on to it.”

The test of what is a reasonable and probable ground was stated by LEWIS JSC in the Supreme Court in Oteri v Okorodudu (1970) All NLR 199 at 205 thus:

“---------- the test to be applied with onus of proof on a defendant seeking to justify his conduct, was laid down in 1838 by TINDAL C.J. in Allen v Wright (1838) 173 ER 602 where he said that 'it must be that of a reasonable person acting without passion and prejudice. The matter must be looked at objectivel, and in the light of facts known to the defendant at the time, not on subsequent facts that may come to light.”

An accused person or suspect is entitled to know the cause of his arrest, except when he is caught in the course of committing an offence or in the course of escaping therefrom. Unlawful arrest is a trespass to person which, unless it can be justified usually renders the tortfeasor liable. The courts will not allow the police to seek cover under the provisions of the Criminal Procedure Act when they derogate from the procedure laid down by the law in the arrest and prosecution of offenders. See Ikonne v COP (1986) 4 NWLR Pt 36, p. 473 SC. And Enwere v COP (1993) 8 NWLR pt 299, p.333 CA .

Who Is Liable: The Police Or The Caller Of Police?

A person may be liable for false imprisonment if he himself affected the arrest or in accordance with the general rule that he who instigates another person to commit a tort is a joint tortfeasor, for procuring or actively promoting the commission of a tort. When an arrest is wrongful, both the person who instigated the arrest and the person or the police officer who effected the arrest are joint-tortfeasors, except the arrest was entirely at the decision or discretion for the police. In deciding who may be sued for false imprisonment, the deciding factor is "who was active in promoting and causing” the arrest? Therefore, a person may be liable for false imprisonment by effecting the arrest or confinement personally, or by instigating another person to commit the tort. In that case, he will be seen as a joint tortfeasor for procuring or actively promoting the commission of a tort. When an arrest is wrongful, both the police and the person who instigated the arrest are joint tortfeasors, except the arrest was entirely at the discretion of the police.

Defences to Trespass To Person

The defence to an action for trespass to person includes:

1. Self-defence or Justification. See Turner v MGM Pictures Ltd (1950) 1 All ER 449 and Lane v Holloway (1968) 1 QB 379.

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.

2. 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. See Bird v Holbrock (1828) 130 ER 911; Hemmings v Stoke Poges Golf Club (1920) 1 KB 720 and Hamson v Duke of Rutland (1893) 1 QB 142 CA. Thus, reasonable measures may be taken or reasonable force may be used to eject or deter a trespasser from entering a property.
3. 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. See Condon v Basi (1985) 2 All ER 453.
4. 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.

Conscious adults who are about to undergo surgery may be required to sign a consent form, which are usually drafted in standard form. In a treatment, not involving surgery, a patient is deemed to give implied consent by consulting a medical doctor.

Adults who require emergency treatment, whether or not they are conscious are deemed to give implied consent to treatment because of the emergency and the need for the doctor to quickly intervene and save the patient from grievous harm or loss of life. A defence of necessity (See F v West Berkshire HA (1989) 2 All ER 545; and Bolam v Friem Hospital (1957) 2 All ER 118) may also avail a medical doctor in such an instance. For children under 16 years, the parents are required to give consent and the parents are deemed to give consent by bringing them to hospital or by signing a consent form. Generally, a child's capacity to give consent to medical treatment depends on the child's maturity, and understanding of the nature of the treatment and what it involves. See B (A Minor) Wardship, Re (1987) 2 All ER 206; and Gillick v East Norfolk HA (1985) 3 All ER 402.

Where a patient claims that he did not consent to medical treatment, two possible legal claims may be brought:

• Where there was treatment against a patient's will or there was treatment of a different kind or there was assault and battery. A claim may be brought for trespass to person. See Chatterton v Gerson (1981) 1 All ER 257; and C (Refusal of Medical Treatment), Re (1994) 1 WLR
• Where the patient was aware of the nature of treatment, but the doctor failed to give sufficient details, or explanation of the risks and side effects, a claim may arise in negligence. A claim for medical negligence is usually more difficult to prove than a claim for trespass to person. See Stubbings v Webb (1992) QB 197; Blythe v Bloomsbury HA (1985) AC 871; and Sidaway v Bethlehem Royal Hospital (1985) AC 871.

A surgery operation carried out by a medical doctor in good faith with reasonable skill, knowledge and care for the benefit of the plaintiff is a defence. Accordingly, a surgeon who is operating in an emergency on an unconscious patient does not commit battery for several possible reasons which include:

• He is not acting hostilely to the patient;
• There is implied consent by the patient; and
• The defence of emergency or necessity is available to the surgeon;

In Cassidy v Ministry of Health (1951) 1 All ER 573, the defendant employers were held liable where the medical staff made the plaintiff’s hand useless due to paralysis, as a result of negligent post-operation treatment. See also Roe v Minister of Health (1954) QB 66; Akerele v R (1943) 2 All ER 367; and R v Yaro Paki (1955) 21 NLR 63.

Also consent is a defence to false imprisonment, for instance, when a person who visits a prison impliedly consents to be locked in confinement with the prisoner during the period of the visit. However, fraud, duress and so forth, usually vitiate consent. Furthermore, consent by a victim will not excuse a defendant from criminal responsibility, for instance, if he takes the life of a person who consents to the causing of his own death by killing him. Also where a medical doctor negligently certified a plaintiff as insane, whereupon she was detained in a mental hospital, he was held liable for causing her false imprisonment in an insane asylum. See De Freville v Dill (1927) All ER 205.

5. Inevitable Accident. See Module 4
6. Judicial Authority. See Onitiri v Ojomo (1954) 21 NLR 19; Ajao v Alkali Amodu & Anor (1960) NNLR 8; and Egbe v Adefarasin (1985)

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.

7. 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. See Murray v Minister of Defence (1988) 2 All ER 421. The requirements of a lawful arrest and stop and search are many and include:

1. An arrest must be within the powers granted by a relevant statute.
2. A reasonable suspicion on the part of the arrestor or person making the arrest.
3. Use of only reasonable or proportionate force (see Farrell v Secretary of State for Defence (1980) Lloyds Rep. 437) to that put up by the person arrested.

What amounts to reasonable suspicion is objective and it depends on the circumstances or facts of each case. (See Holgate Mohammed v Duke (1984) 2 WLR 660). In the course of criminal investigation, the police, especially, can with the consent of a suspect or the permission of a senior police officer, take body samples of a suspect, such as hair, finger nails, blood, body fluids, etc, for analysis in the course of criminal investigation.

Thus, the police have wide powers both at common law and statute to arrest persons they reasonably suspect of crime. Also, a private person or a group may effect arrest as provided under law in relevant circumstances and hand over the person to the police. A defendant who is acting under the criminal law is protected. A plea of reasonable and probable cause may be made. A policeman who mistakenly arrests an innocent person is not liable for wrongful arrest, so long as he had reasonable grounds for suspicion of the innocent person at the time of arrest. However, in false imprisonment, the defendant has the burden of proving that there was reasonable cause for the arrest or detention of the plaintiff.

In Christie v Leachinsky (1943) AC 573, the defendant/appellant police officers without warrant arrested the plaintiff/respondent for unlawful possession of a number of bales of cloth. They had reasonable grounds for thinking that the cloths were stolen but they did not disclose to the appellant the reasons for arresting him as required by law. On appeal, the House of Lords held that the arrest was unlawful. See also Brogan v UK (1989) II EHRR 117.

However, a person who is authorised by law to use force may be personally liable for any excess, he committed in the course of duty depending on the nature and quality of the act. Also an erroneous belief in a power of arrest will not excuse an unlawful arrest. Damages for battery, false imprisonment and so forth will lie.

In Holder v Chief Constable of Lacanshire (1986) 3 All ER 836, the court held that there was false imprisonment of the plaintiff, as the police officer had no reasonable ground for suspicion of the plaintiff at the time of arrest.

8. 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 (1942) AC 206; and Brogan v UK, supra), 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;:

• In connection with a criminal case by lawful arrest or in execution of the order or sentence of a court;
• In a connection with infectious disease, or unsoundness of mind;
• In connection with immigration law;
• In connection with the education and welfare of infants or apprentices who are minors,

9. Reasonable Chastisement in Exercise of Parental or Other Authority.

As a matter of tradition and law, parents have right to administer reasonable punishment or chastisement as a discipline in order to ensure the propel upbringing of a child. However, the punishment of a naughty or rude child must be reasonable, otherwise the chastisement may amount to a tort or crime.

Nowadays, because of parental objection to smacking or caning of children, the practice  is no longer permitted in schools whether public or private. However, the Parents and Teachers Association may permit teachers to administer reasonable chastisement of children and such do not amount to inhuman treatment of children and is not a breach of the fundamental right to dignity of human person at guaranteed in section 34 of the 1999 Constitution of Nigeria. See also Ekeogu v Aliri (1991) 3 NWLR pt. 179, p. 258 SC.

Thus, a parent or other person in loco parentis of a child, pupil or ward may in exercise of parental authority or similar authority administer lawful and reasonable chastisement, and punish or discipline a child in order to correct him. The amount of punishment administered must however be reasonable in the circumstances and short of the criminal offence of cruelty to a child and short of breach of his human rights under the Nigerian Constitution and the Child Rights Act 2003.

A teacher may in exercise of authority, administer lawful and reasonable chastisement to bring up pupils as disciplined, responsible and law abiding citizens. This authority was normally implied by the mere sending of a child to school. However, nowadays the authority of a teacher to discipline a child depends more on the position of government policy and society.

The captain of a ship or an aircraft is responsible to maintain order for the safety of the trip. He may, therefore, exercise such authority as is necessary to preserve life and property in the course of the journey.

In Hook v Cunard Steamship Co. Ltd. (1953) 1 All ER 1021, the plaintiff was a steward in the defendant company's cruise line. Following a complaint by the parents of a child on board the ship, the captain of the ship had the plaintiff confined for a night in a cabin and thereafter restricted his movement on the ship. He was later sacked and fully paid off. The said complaints made by the parents were inconsistent and uncorroborated. There was ground for casting the slightest aspersion on the plaintiff's character. The plaintiff sued for false imprisonment. The court held that the defendant company was liable for false imprisonment and aggravated damages were awarded to him.

This is so for false imprisonment does not merely affect a person's liberty it also affects his reputation. The damage to the plaintiff continues until it is caused to cease by a declaration that the imprisonment was false. Therefore, the general principle of law is that damage is recoverable up to the date of judgement, and also any evidence which tends to aggravate the damage to reputation is admissible up to the moment when damages are assessed by court.

9. 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.

The Remedies for Trespass to Person

A plaintiff in a claim for trespass is entitled to a number of remedies. These include:

1. A declaratory judgement, declaring the rights of the plaintiff to enjoy the fundamental right to dignity of human person, right to personal liberty, right to freedom of movement and so forth as guaranteed under the Nigerian Constitution. See the following cases: Shugaba v Minister of Internal Affairs (1981) 2 NCLR 459; COP v Obolo (1989) 5 NWLR pt 120, p. 130 CA,; Iyere v Duro (1986) 5 NWLR pt 44, p. 665 CA..; Amakiri v Iwowari (1974) 1 RSLR 5; Alaboh v Boyes (1984) 5 NCLR 830; Dele Giwa v IGP, Unrep Suit No. M/44/ 83 of 30/7/84; and Soji Omotunde v AG. Federation, The Guardian 17/12/97.
2. Injunction
3. Binding over to keep the peace for a specified period
4. Award of damages
5. Writ of habeas corpus. See Agbaje v COP (1969) 1 NMLR 137 HC; 1 NMLR 176 CA. and Tai Solarin v IGP, Unrep. Suit No. M/55/84.

When action is filed in court for the release of a detained person and a writ of habeas corpus is claimed, upon establishing a prima facie case that the person has been unlawfully detained, a writ of habeas corpus may be issued by court, commanding the captors or custodians to bring the prisoner to court, and then proceed to examine whether there is any legal ground for the detention of the prisoner and in the absence of any lawful ground for his detention set him free.

6. See Dele Giwa v IGP, supra.

Where an apology is also claimed for unwarranted and unlawful trespass to person, especially a false imprisonment, a court may order that apology be made by the defendant to the plaintiff. Such apology is usually tendered to the plaintiff in the mode directed by the court, such as writing a letter of apology to the plaintiff and also publicising it on radio, television, newspaper and so forth.

7. Escape from unlawful custody or kidnap
8. Self-Defence;

CONCLUSION

There are three main forms of trespass to a person, namely; Battery, Assault and false Imprisonment. Battery, assault and false imprisonment fall under the tort which were formerly dealt with by the writ of trespass. These torts are therefore actionable per se. Salomon J. defines Battery as the application of force to the person of another without lawful participation. Also in Cote v Turner, Holt C. J said the least touching of another in anger is a battery.

SUMMARY

At the end of this unit you should have been able to identify the following :

1. Definition of false
2. The purpose of the law of false imprisonment
3. Trespass to a person
4. Differences to trespass to the person
5. Remedies for trespass to the

TUTOR MARKED ASSIGNMENT

Write short notes on five defences to trespass to the person.

REFERENCES

1. Bodunde Bankole Tort: Law of Wrongful Conduct: Lipservice Punishment (1998),
2. Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).
3. John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London. Sweet &
4. Street: The Law of Torts Sweet & Maxwell (1977), London
5. KODILINYE & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.
6. The Criminal Procedure Code f the Northern States of