Appraisal of Trespass as a Tortious Action Under the Law of Tort

Appraisal of Trespass as a Tortious Action Under the Law of Tort

Chapter One

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;

Are all trespasses actionable?
Is battery necessarily a hostile act?
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.

CHAPTER TWO

TRESPASS TO PERSON

INTRODUCTION

The fundamental principle is that every person’s body is inviolate. Interference however, slight with a person body is known as Trespass to Person.^[1]The following are the ingredients that are sine qua non in the tort of trespass to person;

DIRECT AND PHYSICAL ACT: For an action in trespass to person to succeed, the plaintiff has to show that the act of the defendant was direct and physical. An injury is said to be direct when it follows so immediately upon the act of the defendant that it may be termed part of that act.^[2] Thus, if a person throws a log and it hit another, this is trespass because it is a direct and physical act by the person but if the log lands in the road and another later trip over it, this is not trespass. In the case of Scott v Shepherd^[1] the defendant threw a lighten squib into the crowded market place. It landed on the market stall and was thrown on. It landed on another stall and exploded, injuring the plaintiff. The defendant was held liable for the injuries to the plaintiff as they were a direct result of the defendant`s act. The act of throwing the squib on did break the link between defendant`s act and plaintiff`s injury, as it was instinctive.

ACTIONABLE PERSE: Trespass to person consisting of Battery, Assault and False imprisonment is actionable parse. This means that the plaintiff does not have to prove actual damage as part of his case. Trespass to person protects personal integrity which is regarded as being so important that it is protected even in the absence of damage. Thus, an unwanted contact may amount to this tort even though there is no physical injury to the plaintiff.

ABSENCE OF CONSENT: Before a person can establish a case in trespass, he must show that such interference was without his consent^[2] because lack of consent is one of the ingredients to an action in this tort.

The points discussed above are the essential ingredients in an action for trespass to person and it is expedient to state at this junction that all those ingredients must be established i.e. they must all exist before an action in trespass to person can be successful.

BATTERY

John Cooker^[1] defined Battery as ‘the direct and intentional application of force to another person without that person consent.’ Kodilinye and Aluko defined Battery as `the international application of force to another person`^[2]. It is thus, an actionable battery to slap another person. As it has been said, an action in battery is designed to compensate the plaintiff for any intentional and non-consensual contact made to his person.^[3]

In order to fully understand what battery is under the law of tort, it will be appropriate to make a brief explanation of the ingredients of this tort.

INTENTIONAL ACT: What is crucial is to define what state of mind is required of the defendant to render him liable in battery. It has been held that the intention required in battery is not the intention to hurt the plaintiff but the intention to apply physical force.^[4]That is, he must have intended a contact with the plaintiff.

Another essential ingredient that is close to the state of mind of the defendant is the character of his act. There is no battery unless there is an act by the defendant. Merely to obstruct entrance to a room by standing still is not itself enough. For example, A does not commit battery against B if C seizes A’s arm and uses it like a club. Here, C and C alone is liable.

CONSENT: The next element to be established in the tort of battery is lack of consent. This is the requirement that the physical contact made with the person of the plaintiff must be without his consent. This element must be established as at the time of contact. For, if there was an initial consent followed by a later change of mind, this later state of mind will not eliminate the initial consent at the time of contact. The rule here is not determining the standard of consent required for this must be determined in each particular case.^[1] It is expedient to mention that not all contact amounts to battery. This means that there are actionable and unactionable battery and this shall now be examined.

CHAPTER THREE

TRESPASS TO LAND

INTRODUCTION

The right to acquire and own land or immovable property anywhere in Nigeria is a fundamental right guaranteed in the Nigeria Constitution.^[1] As a result of this right, a person is entitled to have and enjoy quite possession of his land and any interference with land in the possession of another is a trespass to land. Ese Malemi^[1] defined Trespass to land as `Any direct and International act which physically interferes with land in another person’s possession`

According to Kodilinye & Aluko,^[2] Trespass to land called Trespass Quare Clausum Fregit is committed were the defendant without lawful justification Enters upon the land in the possession of the plaintiff, or Remains upon such land, or Directly places or projects any material object upon such land. The Nigerian Court in the case of Ajibulu v Ajayi ^[3]defined trespass to land as `an unjustified interference with or intrusion to possession of land’. From the above definitions of trespass to land, the major essential element of this tort is interference. This means that the defendant must have done such an act on the land of the plaintiff that will amount to interfering with the right of the plaintiff on the land before an action for Trespass to land can be sustained. In addition to interference, the following are the necessary elements in an action for trespass to land;

INTERFERENCE MUST BE DIRECT: The act of trespass complained about must be a direct act of the defendant. It is trespass to walk across the land of another or lean on his wall because these are all direct acts of the person. Interference is said to be direct when it follows so immediately upon the act of the defendant that it may be termed part of that act.

CHAPTER FOUR

TRESPASS TO CHATTELS

INTRODUCTION

A chattel is any property other than land and immovable property. A chattel is any moveable property. The word chattel means any article, goods, or personal property, other than land and immoveable property. Example of chattel include books, cars, furniture, animal, vessel, aircraft, sea craft and anything whatsoever which is moveable and capable of being owned. Trespass to chattels also known as trespass to goods or personal property is defined as a direct and wrongful interference with a chattel in the possession of the plaintiff, such interference being either with intention (the normal case) or negligent. The Law here seeks to protect three major interest of the plaintiff which is: His interest in retaining possession of the chattel, His interest in the physical condition of the chattel; and His interest in protecting the chattel against intermeddling^[1]. Trespass to chattel like any other type of trespass is actionable parse, that is without proof of actual damage and it also protects possession rather than ownership .The plaintiff must have had actual possession at the time of the interference by the defendant. The act which must lead to trespass to chattel must also be direct for if it is indirect, it is not trespass to goods. Trespass to chattel may take various forms such as destroying, damaging or merely using of goods, or wrongfully moving them from one place to another. A Nigerian case in which there was an actionable trespass to chattel is Davies v Lagos City Council^[2] where the defendant council had granted the plaintiff a hackney carriage licence to operate a taxi cab in the Lagos area. The plaintiff was well aware that the permit was for his executive use and was not transferable, but he nonetheless caused it to be transferred to a third party, who operated a taxi cab on the strength of it. On learning of this, certain officials of the council in the purported exercise of their power to revoke the permit, seized the plaintiff`s taxi and detained it. Adafarasin J held that the council was entitled to revoke the plaintiff’s permit for non-compliance with the regulations governing the use of hackney carriage licences, but it was not entitled to seize the vehicle or otherwise take possession of it. The council was therefore liable to trespass. To be examined later in this chapter, are Conversion and Detinue which are also major aspects under trespass to chattel.

CHAPTER FIVE

GENERAL CONCLUSION

CONCLUSION

Chapter one of this work acquitted us with reasons why the researcher embarked on this research work and explained what the researcher intended to do in the subsequent chapters .It was examined in this chapter that trespass has a long historical antecedent which is traceable to the common law of England as early as the 13^th Century and it is applicable to Nigeria by virtue of The Interpretation A ct Of 1989.

Chapter Two examined Trespass to Person .In this chapter, Battery, Assault, and False Imprisonment were identified as the three components that make up Trespass to Person. For an action in Trespass to Person to succeed, the Plaintiff has to prove that the act by the Defendant was without his consent^[1] and that such act was direct and physical. One of the findings of the researcher was that Battery does not necessarily.

have to be a hostile act^[1]. Moreover; it was found that to point an unloaded gun at someone is an actionable Assault because there would have been a reasonable fear induced at the Plaintiff and this is what Assault is about.^[2] For there to be an actionable False Imprisonment, the restraint must be complete and unlawful. It was discovered in the course of the research that an action for false imprisonment can be sustained even where the claimant is unaware of such imprisonment^[3].Defence of Person or Property, defence of Consent and defence of lawful arrest were examined as the defences available under an action for trespass to Person.

Chapter three of this work covered Trespass to Land. This can be by wrongful entry, remaining on land, placing things on land and trespass above and beneath the surface of land. One of the findings in this work is that Self-help constitutes a valid defence as held by Aniagolu JSC in Umoobi v Otukoya^[4]Defence of Licence and Justification by Law were examined as the two major defences available in an action for trespass to land.

Chapter Four dealt on Trespass to chattel and this covered both Conversion and Detinue. Conversion as examined above can be by taking, using, destroying, and by wrongful transfer of title. Abandonment of Goods before it was taken by the Defendant, Delay in bringing action. Consent, Authority of Law, Interest of the Defendant and the value of the Goods are the major defences available under an action for trespass to Chattel. It is pertinent to mention at this junction that any form of trespass as discussed above, that is, Trespass to Person, Trespass to Land and Trespass to Chattel are all actionable parse.^[1].

RECOMMENDATION

Owing to the critical analysis of the topic under discourse, the researcher deem it expedient to make the following recommendations since the major aim of this research is to enlighten the general public in clear and unambiguous term as to what trespass is. It is a known fact that a large number of People do not know what trespass is and therefore cannot appreciate this tort. It is on this basis that the researcher humbly recommend that Government at all level should embark on a vigorous public enlightenment programmes to the citizenry to enable them to properly understand and appreciate the purpose for the tort of trespass which is to prevent any form of interference to the person, land, or chattel of another and this stems from the fact that the law of tort encompasses and governs the everyday life of individuals in any community. In line with the above recommendation, the researcher also advocate for the introduction of the law of tort in the Nigeria basic Educational system. That is, at the Secondary School level. This will help to build a generation of students and teachers who know the rights, when it is breached, and the proper action to take when such rights are breached .There have been so many instances where a person trespassed on the land of another and that other person does not even know that he/she has a course of action and if he/she fails to institute an action, there is nothing the court can do about it and it is on this ground that the researcher strongly recommend that the tort of trespass should be carried into the communities in Nigeria so as to make Law conscious among the people. Knowledge is so important that the two Holy Books admonish followers of God to acquire knowledge. In the Holy Bible, Proverbs 4:7 says `Wisdom is the principal thing, therefore get wisdom: and with all thy getting get understanding`. In the Prophet tradition, he was quoted to have said `Seek knowledge even if it is as far as China`. The meaning of the above is that one must be enlightened and that one must seek knowledge without restriction .China here was referred to by the prophet because China was not an Islamic country then and thus encouraged to study that far. Furthermore, it was observed in the course of this research work that the few people who have proper knowledge on the tort of trespass more often than not approach the court for the enforcement of their rights when an act of trespass has been committed against them because of what is known as Legal factor. This is in two forms. Firstly, professional fees of lawyers are most times beyond the reach of many and filling fees which must be paid to the purse of the Government before a plaintiff will have the right of audience in court is too much and the consequent of this is that many aggrieved persons even where they know their rights may not have the financial capacity needed and thus, leave justice to God. Secondly, it is a notorious fact that the wheel of justice in Nigeria is generally slow and a case on trespass may take several years in court. It is therefore recommended that filling fees should be reasonably reduced and there should be a general review of our judicial system to allow for speedy dispensation of cases pending in our courts because it is a viable proposition of law that Justice delayed is justice denied. In view of this it is therefore, expedient that the judicial process be smoothened so as to encourage people to easily go to court when an unlawful interference has been done to their person, land or chattel. In addition, since there are many cases to be tried in the court of law, the researcher will like to recommend that ADR [Alternative Dispute Resolution] should also be equally applied to tortuous actions.ADR is the use of methods such as mediation to resolve a dispute without resort to litigation. At this junction, I will conclude by saying that if these recommendations are carefully applied, the tort of trespass will have a more footing in the society and hence, limit unlawful interferences. I therefore recommend as follows:

That Government at all levels should embark on a vigorous public enlightenment programme with a view to enlightening the public on what Trespass entails.
There should be introduction of the Law of Tort in the Nigeria Basic Educational System because this will help to build a generation of Students and Teachers who know their rights and the appropriate action to take when such rights are breached.
Filling fees should be reasonably reduced so as to allow those who have a cause of action but not financially buoyant to approach the court.
There should be a general review of our Judicial system to allow for speedy dispensation of cases pending in our various courts and there is no doubt that this will discourage people from resorting to self-help.
Alternative dispute resolution should be encouraged in actions for Trespass and this will help decongest the courts.

BILIOGRAPHY

ARTICLES ON THE INTERNET

`Trespass to Person` http://en.wikipedia.org/wikitrepass accessed on 29 July, October 2010.
John B `The Free Law Dictionary` http://en.wikipedia.org/wiki/> accessed on 09 2010.

BOOKS

Kodilinye G, &Aluko O, The Nigerian and Law Tort (spectrum, Ibadan 1999).
Susu A, Law of Tort (CJC press, Nigeria Limited, 1996).
Clerk L, Tort (17^th ed, Sweet& Maxwell, London 1996).
John C,Tort (3^rd ed, Pitman publishing, 2002).
Viviene H, Lecture note on Tort (2^nd ed, 1996).
Streets, Tort (17^th ed, Butterworth, London 1983).
Richard O, Essential on Tort (Cavendish publishing Limited, 1994).
Nutshell, Tort (8^th ed, Sweet &Maxwell 2008).
Ese M, Law of Tort (1^st ed, Princeston publishing co, 2008).
Winfield J, (16^th ed, Sweet & Maxwell, London 2002).

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