Trespass to the person in the eyes of the law

ASSAULT and battery and false imprisonment all constitute what is referred to as trespass to the person. That is, any unlawful or unwarranted interference with the body or person of another.Generally, assault is any unlawful application of physical force on another, for instance, a slap or a beating. Such an act is however known in the law of torts as battery while the term assault is differently used. Assault refers to an act which puts the other person in any apprehension or fear that he is about to be on the receiving end of an undesired interference with his person. Thus, intentionally putting another person in fear of an imminent battery is called assault. Note must also be taken that both assault and battery are crimes. In fact, most states in Nigeria have codified same. Consequently, two concurrent rights of action exist, that is, a private enforcement in tort (civil) by the victim, and a public prosecution in crime by the state. In criminal law, the term assault is used for both acts of assault and battery as defined in tort. In other words, the crime of assault covers both unlawful application of force and the threat or attempt to apply the force.

With references to the different usages of the terms in tort. Assault and battery is preceded by an assault, that is, assault is followed by battery. There could however be instances where battery is not preceded by an assault. An example is, where the intended victim of the battery is unaware of the imminence of the attack, for example, in the event that the person (the victim) is asleep or is not facing his assailant. Similarly, assault maybe committed without battery, for instance, where an intended blow is deflected. It is clear both the definition and the accompany explanation that in assault, the act of the defendant must have been such as to cause an ordinary person to fear that violence was about to be applied to him. It is quite conceivable, that unduly timorous person or one suffering from some phobia may be apprehensive of violence when in fact none is imminent. Such unreasonable apprehension would not amount to the tort of assault.

Although battery may involve some bodily touch, that need not be the case. It is for instance, still battery if the defendant brings some objects or substance in contact with the plaintiff’s person throwing stones at someone, or spitting at him. That would amount to battery. Furthermore, it must be noted that battery is not necessarily a hostile act. Kissing a woman against her will may ground a cause of action In battery, and so could holding or caressing her against her will or consent. Where her consent is sought and obtained, no injury is done to her, then a cause of action in battery or assault does not arise (volenti non-fit injuria). Indeed, any unauthorised contact with the person of another may constitute battery. However, certain exceptions are made in the course of social interactions that do not constitute battery. Thus,to jostle or push a person in a crowded bus will not amount to battery. But any deliberate or violent push, even in such situations will be battery.

In an action for battery or assault, it is not necessary for the plaintiff to prove any harm to his person. In the case of assault, all that needs to be proved is that the defendant did an act which made the plaintiff apprehensive, that he was about to be the victim of a battery, the plaintiff needs only to prove that the defendant effected an uninvited and unwarranted force or pressure on his person. Whereas false imprisonment which is the last leg of the concept of trespass to the person is the imposition of bodily restraint on the movement of a person.”False” in this tort means wrong or unlawful. The term imprisonment is used in wider sense than in ordinary parlance or usage. It is not limited or restricted to putting someone in confinement. Any type of restraint which hinders the plaintiff’s freedom of movement against his will is an imprisonment. Neither physical contact nor anything resembling a prison is necessary for the commission of the tort. Imprisonment can be effected under authority orally, by mere words.

For instance, where a police officer or a law enforcement agent wrongfully orders the plaintiff to follow him to the police station or other places for questioning and the plaintiff obeys; the officer may be liable for false imprisonment, though he never touched the plaintiff. It would be a different case if the officer makes it known to the plaintiff, that he has an option to refuse invitation; there will then be no restraint and therefore, no false imprisonment. To constitute false imprisonment, the restraint on the plaintiff must be total and complete. Where the plaintiff has a reasonable means of escape the tort would not have been committed. That will be the case where there are two doors to a room in which the plaintiff is confined but only one of them is locked against him. False imprisonment occurs when a person intentionally restricts another person movement within any area without legal authority, justification or consent. False imprisonment is both a crime and a tort, so it is consequently punishable in law. However, there are defenses available to the defendants.

  • Oluwanisomo, a legal practitioner, writes in from Ado-Ekiti, Ekiti State