An Appraisal of the Concept of Trespass Under the Law of Tort

The concept of trespass under the law of tort simply means an unlawful entry or access to a property an individual isn’t entitled to. It’s classified into 3 which are trespass to person, land and chattels.

Trespass to the Person

Trespass to the person comprises three torts namely:

1. Assault
2. Battery and
3. False Imprisonment.

Assault

Assault means any act which puts the plaintiff in fear that a battery is about to be committed against him. For instance, to throw an object at the plaintiff is an assault so long as the object is still in the air, but if the object strikes him there is a battery.

However, where the defendant first points a loaded gun at the plaintiff and then fires a shot which hits him he is said to have committed both assault and battery. But where the defendant aims a blow at the plaintiff but his blow is intercepted by a third party, only an assault is committed

Battery

Battery means the actual application of force to the person. For example; to slap the plaintiff on the face is a battery. Usually, assault is committed before a battery but there are circumstances whereby battery will be committed without assault, for example is where the plaintiff is struck unexpectedly from behind or when asleep.

In assault, the action of the defendant must have been such that a reasonable man might fear that violence was about to be applied or committed to him. Thus if a man of ordinary courage would not have been afraid, the fact that the particular plaintiff was afraid will not make the defendant liable. Conversely, the fact that the plaintiff was exceptionally brave and was not afraid will not prevent him from succeeding in his action if a man of ordinary courage would have been afraid.

See also: Trespass to Land

But, in battery it is not necessary that there should be any bodily contact between the defendant and the plaintiff. It is sufficient if the defendant directly brings some material object into contact with the plaintiff’s person. For example, it is battery to throw stones at the plaintiff; it is even a battery to kiss a woman against her will. However, contact conforming to accepted usages of daily life is not trespass; thus, to push a person in a crowded bus or sport stadium will not constitute battery except where there was a violence.

However, an assault or battery is justified if committed in reasonable defence of oneself to another. What constitute a reasonable defence depend on the following circumstances:

1. That the battery must be committed in actual defence from attack and not by way of retaliation after an attack.
2. The self-defence must be reasonably commensurate with attack.

False Imprisonment

False imprisonment in tort means any physical restraint; for instance where a brother locks his adult sister in her bedroom and removes the key, or where a lecturer locks his students in a lecture hall after a lecture.

It is a fundamental requirement of the tort of false imprisonment that the plaintiff’s freedom of movement in every direction must have been restricted. Thus, a partial restraint is not sufficient. For example; if the plaintiff lives in a room with doors, it is not false imprisonment on the part of the defendant to lock one of those doors, for the latter can escape through the other door, and it is immaterial that in doing so he will commit a trespass against the third party.

If a police officer wrongfully order the plaintiff to accompany him to the police station for questioning and the plaintiff obeys, the officer may be liable for false imprisonment even

though he never touched the plaintiff except he make it clear to him that he is entitled to refuse to go. For example in the case between Union Bank of Nig. Ltd vs Ajaku (1990)1 NWLR part 126 page 328 it was held that it is false imprisonment where a customer of a bank was not allowed to leave the bank premises by a gateman.

Trespass to Land

Trespass to land comprises three torts namely:

1. By unlawful entry into the land,
2. By remaining onto the land and
3. By placing material object.

By Unlawful entry into the Land

This is the most frequent form of trespass, consisting of a personal entry by the defendant, or by some other person through the defendant, into the land or buildings occupied by the plaintiff.

The slightest crossing of the boundary of the plaintiff’s land is sufficient. For example; it is trespass to put one’s hand through the window of the plaintiff’s house or to sit on his wall.

An intentional trespasser is strictly liable for all damage caused by his action, whether such damage is done willfully or accidentally and even where no damage or harm was caused, since the trespass tort is actionable per se.

By Remaining onto the Land

A person is liable in trespass if, having entered another’s land lawfully; he remains there after his right of entry has come to an end.

To refuse to leave the plaintiff’s land is as much a trespass as to enter originally without right. For example, a person who pays for admission to a cinema, and thus enters lawfully, will become a trespasser if he refuses to leave at the end of the show.

In Balogun v. Alakija (1963)2 All N.L.R. 175, it was held that where a person is lawfully on the premises of another, once his license or invitation is terminated, he is only allowed a reasonable time in which to leave and thereafter he becomes a trespasser.

See also: Nigeria cases about Trespass to Land

However, a tenant who remained onto the land is not a trespasser unless the landlord required him to give up possession and quit the premises.

By Placing Material Object

It is trespass to place any material object on the land of another, or to bring any object into direct physical contact with another’s land without lawful justification, for example to fire a

gun into the soil, to place a ladder against a wall, to encourage a dog to enter premises is a trespass.

However, it is essential for liability in trespass that the placing or projecting of the object on to the plaintiff’s land should be direct. If it is indirect, there can be no liability on trespass but only in nuisance. For instance, to plant a tree on the plaintiff’s land is a direct invasion and therefore a trespass, but to allow the roots of a tree to spread from adjacent land on to that of the plaintiff is indirect and therefore a nuisance.

In Onasanya v. Emmanuel (1973) 4 CCHCJ 1477, it was held that the throwing of water and refuse on to the plaintiff’s land were direct acts and thus amounted to trespass, but that the escape of excreta was indirect invasion and therefore not trespass but nuisance.

Trespass to Chattels

Trespass to chattels comprises two torts namely:

1. Conversion, and
2. Detinue.

Conversion

Conversion may be defined as an intentional dealing with or exercise of control over a chattel which seriously interferes with the plaintiff’s possession or right to possession of such chattel.

For example, it is conversion to take goods, without lawful justification, out of possession of the person entitled to them with the intention of exercising a permanent or temporary dominion over them. It is also conversion to intentionally take, destroy, consume, alter, use, receive, wrongfully transfer, and or detain the plaintiff’s chattels.

However, conversion is similar to trespass in that they both protect possession rather than ownership of goods and the main differences between the two are:

1. In conversion the interference must be intentional whereas in trespass it may be intentional or negligent.
2. Unlike in trespass, in conversion it is not necessary for the plaintiff to have had actual possession of the goods at the time of the interference: it is sufficient if he had an immediate right to possession.
3. It is not conversion merely to move a chattel from one place to another without any intent to take possession of it or dispute the owner’s title, but such act would amount to trespass.

Detinue

The action in detinue arises where the plaintiff has an immediate right to the possession of goods, and the defendant, who is in actual possession of those goods, fails or refuses to deliver them up after the plaintiff has made a proper demand for their return.

Detinue is similar with conversion, however, there are some differences between the two as follows:

1. The defendant will not be liable for conversion by detention where, prior to the demand for their return by the plaintiff, the goods have been lost or destroyed but he will be liable in detinue; unless he proves that the goods were not lost or destroyed through his negligence.
2. Refusal to surrender on demand is the main characteristic of detinue, but in conversion is only one of the several forms.
3. In detinue the plaintiff can claim specific restitution of the goods, but he cannot do so in conversion.
4. In conversion, damages are generally assessed on the value of the goods at the date of conversion, whereas in detinue they are assessed on the value of the goods at the date of the trial.

Lastly, the tort of detinue and trespass to chattel does not apply on a person who commits same in the course of performance of public duty. For example in the case between Igbuya Vs Deregare & others (1990)5 NWLR part 139 page 425, the claim of the plaintiff/ appellant was dismissed on the ground that there is no evidence from a veterinary surgeon or officer that the cow is fit for human consumption and that the 1^st defendant/ respondent was entitled to seize and destroy the cow that he discovered was not fit for human consumption.

Conclusion

The concept of trespass under the law of tort simply means an unlawful entry or access to a property an individual isn’t entitled to. This write-up has explored three primary categories of tortious liability: trespass to the person (assault, battery, and false imprisonment), trespass to land (unlawful entry, remaining on land, and placing material objects), and trespass to chattels (conversion and detinue). Understanding these concepts is crucial for recognizing and addressing violations of individual rights and property interests.

---

About Author