DEFENCES TO TRESPASS TO THE PERSON

DEFENCES TO TRESPASS TO THE PERSON. Defense of person or property in assault and battery. An assault or battery is justified if committed in reasonable defense of oneself to another. What is reasonable depends on the circumstances.

  • Self – defense or defense of property: Note that the defense/reply should be proportionate – Lane V. Holloway.
  • Lawful Authority: Section 295 of the Criminal Code. A parent or guardian may reasonably punish or confine the child or ward. A school master may reasonably discipline a child.
  • Consent: Volenti non fit injuria. Consent may be implied in certain situations like day to day hustles, a sportsman cannot sue for trespass to person – Write V. Mclean except the act was a foul against the rules of the game done with the intention to cause harm. Heard V. Weardale Steel coal and Coke Co. R. V. Billinghurst, R V. Williams, Leidh V. Bladstone. Wilson V. Pringles. Although consent may be vitiated in some instances. In R V. Williams, the defendant told the girl that having sex with him would improve her voice. It was held that the consent of the naïve girl was no consent.
  • Lawful Arrest.
  • Necessity: See the case of F V. West Beckshire Health Authority.
  • Exturpi causa non Oritur action.

Two principles are clear:

  1. The battery must be committed in actual defense from attack and not by way of retaliation after attack. Thus, if A gives B a slap on the face then turns round and walks away, B is not justified in striking A from behind in retaliation. See the England case of Cockcroft V. Smith (1705) 91 E.R. 541.
  2. The self-defense must be reasonably commensurate with attack.

If A threatens B with a deadly weapon, B may defend himself with a deadly weapon. See the case of Turner V. M.G.M. Pictures Ltd. (1950) 1 All E.R. 449, at p.471. however, if A merely punches B, B would be justified in defending himself with his fists, but he would not be justified in pulling out a gun and shooting A. see the case of Cook V. Beal (1697) 91 E.R. 1014.

Assault or battery is also justified if done in defense of one’s own property (whether land or chattels) or property which one is defending as agent of the owner or occupier. Again, the force used must be no more than necessary. See the English case of Collins V. Renison (1754) 96 E.R. 830. Where the battery is in defense of land, the following distinction is made.

If X enters Y’s land forcibly, Y may at once use reasonable force to remove him; but if X enters peaceably and without force, then Y must at first request him to leave before any force will be justifiable. If X, after being requested to leave, resists Y’s attempt to eject him, he may himself be liable for assault and battery.

See also False imprisonment, Trespass to person, Strict Liability, Tort and crime Distinguished, Tort and Contract.

Parental or other authority

  • A parent or guardian of a child may lawfully chastise or confine the child and will not be liable for assault, battery or false imprisonment in so doing, provided the amount of force used or the detention is reasonable in the circumstances. Thus, it will be lawful, for example, for a father to give his 18- years-old son a moderate beating, or to confine him to his room for a short period on account of the boys behavior, but it would not be lawful to beat an infant who is too young to appreciate the meaning of discipline, or to strike a child with such force as to cause him actual bodily harm or to lock up an 18-year-old girl to prevent her from associating with a man his father did not approve.
  • A school teacher having charge of a child has a right to discipline the child by way of reasonable chastisement or confinement. See Ryan V. Fildes (1938) 3 E.R.517. it is presumed this right arose from a delegation of authority by the child’s parent to the teacher, See the Kings Bench decision on Mansell V. Griffin (1908) 1 K.B 160; but the modern view is that a school teacher has an independent right to chastise pupils for the purpose not only of training them in good behavior, but also of maintaining order and discipline in the school as an organization. Probably, the existence of internal school regulations forbidding corporal punishment does not deprive a teacher of this defense where the punishment is moderate and reasonable. See the case of Mansell V. Griffin (1908) 1 K.B 160
  • A captain of a ship or aircraft will not be liable for assault, battery or false imprisonment where he personally, or through a member of his crew, uses reasonable force to restrain any person on board, whether a crew member or a passenger, if he reasonably believes such restraint to be necessary for the safety of the ship or aircraft.

CONSENT – DEFENCES TO TRESPASS TO THE PERSON

Where the plaintiff consents to what would otherwise amount to assault or battery by the defendant, the latter will have a complete defense. See the case of Chapman V. Ellesmere (1932) 2. K.B. 431 pg. 463. Thus, for example, a participant in a boxing or wrestling match cannot recover damages from his opponent in respect of blows inflicted upon him during the match, for he will be taken to have consented to them.

An apparent consent would be inoperative if it is induced by fraud or concealment. Thus, there may be an actionable battery where for example, the plaintiff permits the defendant to touch him with a piece of metal which, unknown to him but known to the defendant is charged with electricity, or where a naïve girl submits to indecent contact by a doctor who deceives her into believing that his act is a necessary part of the treatment.

Lawful arrest – DEFENCES TO TRESPASS TO THE PERSON

It is a defense to an action for false imprisonment (as well as for assault and battery) that the restraint upon the plaintiff was carried out in the course of a lawful arrest, the burden of proof of the lawfulness of the arrest is on the defendant. See the case of Oteri V. Okorodudu (1970), 1 N.L.R. 194. An arrest may be either with warrant or without warrant.

  • A warrant of arrest is an authority in writing, issued by a magistrate or by any court having civil or criminal jurisdiction, addressed to a police officer (the usual case) or to any other person, to arrest an offender and bring him before the court.

A police officer or other person who arrests within the terms of the warrant will have a complete defense to any action for false imprisonment, assault or battery. The only circumstances in which problems are likely to arise in arrest with warrant are:

  • Where the warrant is defective or issued without jurisdiction, and
  • Where the police officer by mistake arrests the wrong person. See Section 258 and 259 of the Criminal Code respectively provide that no criminal responsibility will arise in the circumstances, but is not clear whether there is a similar defense to actions in tort. It is submitted that the courts should hold there is an equivalent defense in tort.

Arrest without warrant

Section 20 of the Police Act provides the powers of a police officer to arrest an offender or suspected offender without warrant. Private persons also have powers of arrest without warrant under Section 12 and 13 of the Criminal Procedure Act.

Where the defence of lawful arrest is based on a section or subsection of the status which gives a power to arrest on reasonable suspicion of the commission of an offence, the defendant in an action for false imprisonment must show that, before arresting the plaintiff, he satisfied himself that there were reasonable grounds for such suspicion.

In Oteri V. Okorodudu (1970) 1 All N.L.R.195. Lewis J.S.C., delivering the judgment of the supreme Court, said that, in determining whether there was a reasonable suspicion, “the test to be applied, with the onus of proof on a defendant seeking to justify his conduct, was laid down….by Tindal C.J. in Allen V. Wright (1838)173 E. R. 602.

Where he said that it must be that of a reasonable person acting without passion and prejudice. The matter must be looked at objectively, and in the light of the facts known to the defendant at the time, not on subsequent facts that may come to light”.

Further, Lewis J.S.C., quoted the following observations of Lord Delvin. See the celebrated case of Hussein V. Kam (1969) 3 All E.R. 1626, at p.1630.

‘…..suspicion in its ordinary meaning is a state of conjecture or sunrise where proof is lacking; I suspect but I cannot prove.’

Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is indeed desirable as a general rule that an arrest should not be made until the case is complete.

But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it isalways or even ordinarily to be exercised. It means that there is an executive discretion.
In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police enquires are examples of those factors with which all judges who have had to grant or refuse bail are familaiar.

There is no serious danger in a large measure of executive discretion in the first instance, because in countries where common law principles prevail the descretion is subject indirectly to judicial control.

In Oteri case itself the Supreme Court held that the arrest and detention of the plaintiff on suspicion of the offence of failure to pay income tax was not justified merely because the plaintiff was not able to produce a tax receipt on the spot upon the request of the authorities.

Notwithstanding the powers to make an arrest in a particular case, the arresting officer or citizen will be liable for false imprisonment and / or assault and battery if he fails to follow the procedures laid down by Section 4,5,9 and 14 of the Criminal procedure Act.

Section 4 provides that a person arrested should not be handcuffed, otherwise bound or subject to unnecessary restraint unless there is reasonable apprehension of violence or of an attempt to escape, or unless the restraint is considered necessary for the safety of the person arrested.

Section 5 provides that the arresting officer or private person must inform the person arrested of the cause of the arrest except where:

  • The person arrested is caught in the actual course of the commission of a crime or;
  • He is pursued immediately after the commission of a crime or escapes from lawful custody.

Section 9 provides that a person arrested with or without a warrant shall be taken with all reasonable dispatch to a police station or other place for the reception of arrested persons and shall without delay be informed of the charge against him.

Section 14(1) provides that a private person arresting without warrant shall without unnecessary delay take the person arrested to a police officer, or in the absence of a police officer, to the nearest police station.

A problem may arise where the person arrested does not understand the language in which the police office or other person states the reason for the arrest. The rule at common law states that the arresting officer who states the reason in English is not bound to get an interpreter to translate his words into the language of the arrested person. See the case of Wheatley V. Lodge (1971) 1 W.L.R. 29.

However, Section 21(2) of the 1963 Constitution of the Federation of Nigeria provides that “ any person who is arrested or detained shall be promptly informed in language he understands of the reason for his arrest or detention. “ it is difficult to see how this provision can be complied with in practice where, for example, a person who speaks only Efik arrests a man who understands only Igala, one where an English-speaking policeman arrests a man whose only language is Hausa.

Where the defendant pleads that he arrested the plaintiff without a warrant under the authority of some other statute, his defence will fail unless he shows that statue on its true construction did give him such a power of arrest.

In Okechukwu V. Anigbogu (1973) 3 E.C.S.L.R. 159; the plaintiff was arrested and locked up in a van during a “rates drive” by the defendants, who were the chairman, secretary and two rate collectors of the local community council.

In an action for false imprisonment brought by the plaintiff, the defendants pleaded that the arrest and detention were lawfully carried out under that authority of an Edict which provided that “a rate collector or any authorized person engaged in rates drive shall not be liable in any action or proceedings whether civil or criminal for anything said or done by him in the lawful exercise of his functions. “Aseme J. held that, although the forgoing provision was very wide and appeared to exonerate rate collectors from all criminal and civil liability in respect of the carrying out of their functions, it did not protect the defendants in the present case because it was not one of the functions of a rate collector, as laid down by the Edict, to arrest or detain a citizen in order to collect or receive rates.

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