1.0.0: INTRODUCTION
Tort is a civil wrong involving a breach of duty fixed by law and its breaches being redresible by an action for unliquidated damages.1 The primary function of the law of tort is to provide protection for an individual’s personal or proprietary interest and against unlawful interference with such interest by another.
Trespass being a major aspect of tort has a long historical antecedent which is traceable to the common law of England as early as the 13th century and it is applicable in Nigeria by virtue of the Interpretation Act.2 Trespass has being defined as’ The unlawful instruction that interferes with ones person or property’3
Trespass can be classified into three major types, namely Trespass to person, Trespass to land and Trespass to chattel. Battery, Assault and False imprisonment are the three aspects of trespass to person. Susu4 defined Assault as ‘The intentional putting of another human being in fear of an immediate painful or undesirable bodily contact’. Battery is any form of physical contact with the body of the plaintiff without the latter’s consent. An action in Battery is designed to compensate the plaintiff for any intentional and non-consensual contact made by the defendant with the person of the plaintiff. False imprisonment on the other hand, is restraining or detaining of a person if the person doing or causing the imprisonment has no right to imprison that other
1 Kodilinye G & Aluko, G, The Nigerian Law of Tort, (spectrum, Ibadan 1999)] 1. 2 Section 45 Cap 89 of 1958 Laws of The Federation Of Nigeria ( LFN) 2004.
3 John B, `The Free Law Dictionary`, < http://en.wikipedia.org/wiki/> accessed on 09 October 2010. 4Susu A, Law of Tort, (CJC. Press, Nigeria Limited 1996) 3.
person. It is pertinent to state that Trespass to person is actionable parse. The most common defence for the tort of trespass to person is that of volenti non fit injuria literally consent. Defence of person or property is also a valid defence provided a reasonable force has been used. Parental or other authority such as a school teacher is a good defence. A parent of a child may lawfully chastise or confine the child and will not be liable for any of the actions under trespass to person provided the amount of force used or the detention is reasonable in the circumstance.
Trespass to land is expressed in the Latin maxim trespass quare clausam fregit which means because he [the defendant broke or entered into the close of the plaintiff].5Trespass to land requires essentially possession of land by the plaintiff and an encroachment in some way by the defendant. Action under this tort can be by wrongful entry [which is the most frequent], remaining on land, placing things on land, trespass above and beneath the surface of land. There are basically three defences to trespass to land, namely Licence, Justification by law and necessity. Licence is express or implied permission by the possessor of land to be on it. Justification means a legal reason for an act or omission. Necessity on the other hand, is the defence in which it is vital to commit the trespass. It is expedient to say at this junction that trespass to land is actionable perse.
Trespass to chattel which is the third classification of trespass is the intentional and wrongful interference with chattel in possession of the plaintiff. Thus, in Kirk vs. Gregory,6the movement of a deceased’s rings from one room in the house to another was held liable in trespass and nominal damages was awarded. It is therefore essential
5The Nigerian Law of Tort, p.182.
6[1878] 1 EXD, 55.
that under this tort, the plaintiff must be in possession of the chattel at the time of the tort or have the right to immediate possession.
Conversion which is a tort under trespass to chattel is an act done intentionally which is inconsistent with another’s right in respect of goods.7 Conversion can be by taking, using, receiving, detention and by wrongful transfer of title. Detinue which is similar to conversion by detention is a wrongful withholding of plaintiffs goods. Defence of mistake and retaking of goods are the two major defences available in an action for trespass to chattel, trespass to chattel is actionable perse.
Having laid a foundation as to the contents of the tort of trespass, it is hoped that a concerted effort to unravel intricacies of this research will make a good contribution into the field of knowledge.
1.1.0: BACKGROUND TO THE STUDY
Trespass is one of the ancient forms of action that arose under the common law of England as early as the 13th century. It was considered a breach of the king’s peace for which the wrong doer might be summoned before the king`s court to respond to a civil proceeding from the harmed caused. The courts were concerned with punishing the trespasser rather than compensating the landowners and from the beginning a defendant convicted of trespass was fined; a defendant who could not pay was imprisonment. The fine in these criminal proceedings developed into an award of damages to the plaintiff and this change marked the beginning of tort action under the common law which has eventually become operative in Nigeria by virtue of Section
7 Boniface Anyika and co Lagos [Nig] Ltd v Uzor [2006] ALL FWLR (Pt.183) 1852-1853.
45 of the Interpretation Act.8 Today, the law of trespass has developed to become an aspect of tort with several branches of its own.
1.2.0: OBJECTIVES OF STUDY
The aim and objective of this essay is to undergo an appraisal of trespass as a tortious action under the law of tort, thereby examining in details the three major branches of trespass with a view to enlighten the general public in clear and unambiguous words what trespass entails. Furthermore, the researcher is concerned with such questions as;
A Are all trespasses actionable?
B Is battery necessarily a hostile act?
C Does self-help constitutes a valid defence in an action for trespass to land?
It is therefore hope that answers to these questions and many more would be found at the end of this research.
1.3.0: FOCUS OF STUDY
The research work covers and tries to consider trespass in its entirety as embodied in the law of tort. It also encompasses a detailed explanation of the division of trespass in relation to the relative mind of the court Vis a vies the decisions of the Supreme Court.
1.4.0: SCOPE OF STUDY
The extent of this research work is limited to Trespass to Person, Trespass to Land and Trespass to chattel and the defences that are available to each of them.
8 ibid.
For the purpose of this research, the source of information that will be utilised is secondary source and it includes judicial authorities on the chosen topic, Statutory authorities, Textbooks by eminent and renowned authors. Articles from the internet as well as comprehensive lecture note from the Faculty of law, University of Ilorin, Kwara State, Nigeria. The work will be subjected to critical analysis.
1.6.0: LITERATURE REVIEW
The various forms of material that will be helpful in order to bring out a comprehensive research are as follow; Susu9 carefully elucidated the concept of trespass to person. In his opinion, a plaintiff in an action for Assault must have suffered a reasonable apprehension of immediate bodily harm. However, Susu failed to give defences in action for trespass to person. Emeka Chianu10 covered all aspect of trespass in clear and easy to understand word and emphasised that possession is at the heart of all actions in trespass to land but to him, consent is the only defence available in an action for trespass to person.
Another distinguished Nigeria authors, Kodilinye and Aluko11 defined Battery as `The intentional application of force to another person`. Kodilinye nevertheless failed to define what trespass is and did not give a clear distinction between Assault and Battery. Winfield and Jolowiczs12 are one of the best works on trespass. They used illustrations in driving home their points but failed to mention whether or not self-help constitute a valid defence and this is a major aspect that attention must be given
to under trespass to land. Streets13 is of the opinion that there is no battery unless there is an act by the defendant. One of the shortcomings of his work was that it was not encompassing enough and this did not allow for a better understanding of the subject matter. Clerk and Lindsell14 who are foreign authors expressed their views as to what trespass is but of noteworthy is the fact that they failed to state their position as to the fact whether or not knowledge of restraint is essential in an action for false imprisonment. Vivien Harp wood15 covered all the three aspect of trespass but laid more emphasis on the criminal aspect of trespass to person and treated criminal injuries compensation which has no relevance to the research work. Richard Owen16 limited his work to trespass to land and excluded the two other classifications.
The following are areas where the research work will be different from the literature reviewed.
1.7.0: DEFINITION OF TERMS
The following are the terms that will be used in this research work
Assault- any wilful attempt or threat to inflict injury upon the person of another
Battery -intentional and wrongful physical contact with a person without his or
her consent that entails some injury or offensive touching
Breach- the breaking or violating of a law
Chattel- a thing personal and movable
Consent- permission
Cujus est solu ejus est usque adcoelum at usque ad inferos-whoever owns or possesses the surface of the earth also owns or possesses everything above it to the heavens and everything below it to the centre of the earth
Conversion- an unauthorised exercise and assumption of the right of ownership over goods or personal chattel belonging to another
Damages- a pecuniary compensation which may be recovered in the court
Defences- attempted justification or vindication
Detinue- a wrongful withholding of other goods
Freedom- the stage of not been subject to legal restraint
False imprisonment- the detention of a person without his or her consent and without
lawful authority
Force- violence or constraint exerted upon or against a person or thing
Goods- a term of variable content and meaning
Intention- determination to act in a certain way
Interference- legal reason for doing an act or omission
Land- soil or earth
Licence- express or implied permission
Mistake- error arising from ignorance
Necessity- irresisting compulsion
Possession- having control over a thing
Person- a human bring
Right- ethical correctness
Self –help- taking actions outside the normal legal process
Tort- a civil wrong involving breach of duty fixed by law
Trespass- unlawful interference
Trespass quare clausaum fregit- the defendant broke into the close of the plaintiff
Unliquidated – damages which has not been determined or calculated
Volenti non fit injuria - consent.
1.8.0: CONCLUSION
This chapter examined the three major forms of trespass under the law of tort, namely Trespass to Person, Trespass to Land, and Trespass to Chattel. It is essential to say at this concluding part that all the forms of trespasses are actionable parse. That is, a plaintiff in an action for trespass does not have to prove damages as part of his case.
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