TORT 1

ABIGAIL OSEI MENSAH

MEANING OF TORTS
Tort is derived from the Latin word “tortus” meaning broken or twisted. Thus tort is concerned
with twisted or wrongful behavior.
Tort is a civil wrong arising from three ways:
1. Intentional wrongful act harming body and or property: assault , battery and trespass to
land.
2. Negligence which unintentionally causes physical property, property or economic injury
to a person to whom we owe a duty of care.
3. Defamation-false and legally inexcusable aspersions on a person’s reputation.
Tort deals with human behavior which is categorized as wrongful by the law and such behavior
interferes with an interest of another protected by the law. The victim is allowed to seek redress
in An act which may give rise for an action in torts and some other branches of the law for
instance contract. The relationship between the tortfeasor and the victim are relevant when
considering compensations for victims of wrongdoings through tort law. In Rylands v.
Fletcher : one who allows a dangerous thing to escape from land he does not occupy does not
commit this tort. Tort is concerned with providing remedy to people harmed by others. It is
concerned with the protection of certain interests against certain types of wrongful behavior.

DISTINCTION BETWEEN TORT AND CONTRACT

FORMAL :
 Contract obligation is based on agreement between the parties but tort obligations are
created by law independent of the consent of the parties.
SUBSTANTIVE :
 Contract aims to protect the interest in the performance of promises but tort aims at
maintaining the status quo(the existing current situation).
 Contract gives damages for disappointment of expectations but tort gives damages for
deteriorating of the plaintiff’s position: for many torts there will be no damages if the
plaintiff’s person or property is not harmed.
 Contractual rights are iura in personam( against a particular person) but tort rights are
available aginst all eprsons , i.e iura in rem.
 Contract liability is for nonfeasance (failing to perform a particular thing), whils tort
liability is concerned with misfeasance( positive actions causing damage)

DISTINCTION BETWEEN TORT AND CRIME

An act may both be a tort and a crime
The aim of criminal law is to protect the interest of the public by suppressing of certain
behavior through the infliction of punishment whilst The aim of tort is to give private
redress to wrongs suffered by individuals through monetary compensation.

The law of tort in Ghana is part of the received common law. Before the 19 th Century the
common lawyers viewed law not in terms of doctrines but in terms of certain specific writs
available to redress specific wrongs . During the Norman Conquest ( 13 th Century) no plaintiff
could bring an action in the King’s court without one of the writs issued from the Chancery.
These writs became limited and were framed to govern certain specific kinds of wrongs. Each
writ had its own procedure and substantive law A plaintiff had to select that writ which fitted the
facts of his case. If he chose the wrong writ, this was fatal to his action.
Modern torts law arose from three of these writs:
 trespass vi et armis,
 trespass on the case and
 detinue(abolished in 1977).
Action for trespass vi et armis et contra pacem(against the peace) dates as far back as King
John’s reign in the 13th Century. Most trespass were resolved in the local courts, the King’s
court was for only trespass vi et armis. Originally it was directed at the breach of the kings peace
, hence could be described as both civil and criminal proceedings.
By the end the 13th century , contra pacem became a jurisdictional ploy: thus not because the
facts but it may be inserted for a defendant to wage the law –a system of legalized perjury with
which a defendant could defeat a plaintiff’s case by procuring peers to lie on his behalf.
Therefore vi et armis with full force and violence. Originally it was a crime and the guilty was
fined or imprisoned. Gradually the law gave the victim monetary compensation, thus paving the
way for trespass to become a tort.
Towards the end of the 17th century( 1697), the fine was abolished by statute and the writ was
converted into a civil remedy .

Three categories of trespass was recognized:

 Trespass to the person- vi et armis
 Trespass to goods – de bonis asportatis
 Trespass to land-quare clausum fregit
The common feature of all three is that the +trespass must be : an act done by the defendant ;
hence act by third parties are not trespass : which is direct and : forcible; thus merely causing
injury , loss or damage was not trespass. With time the force didn’t come to mean great display
of force or violence but unauthorized.
Therefore trespass was established as :
 An act by the defendant,
 which is direct,
 Forcible interference with the plaintiff’s right.
The insistence of these three criteria meant that several kinds of injuries fell outside the scope of
trespass vi et armis, thus: aspersion.
If A voluntarily submits himself or property to B’s action, the writ will not be issued even if B’s
action caused harm.
If A’s injury was only a direct consequence of B’s action, this was not trespass. Intentionally
putting a log in someone’s way and causing him to trip over it and fall is not trespass because the
injury is consequential and not direct. The courts have however determinate directness as causal
occasionally…Scott v. Shepard.
If the injury was caused by mere omission no trespass.
TRESPASS ON CASE
The writ of trespass on the case was developed to fill in these gaps. The major procedural point
of difference between the two : in trespass, a plaintiff confined himself to conventional words in
the writ and reserved his substantial allegation for declaration whilst in case the naked facts
upon which he relied were lengthily set out in the writ itself.
Trespass on the case is responsible for greater part of our modern tort law. : nuisance,
conversion, deceit, defamation, malicious prosecution, various torts protecting economic interest
and negligence.
Trespass vi et armis because of its quasi – criminal origins required no proof per se , hence it is
actionable per se and so there is no need for proof of damage. For case , it was not actionable per
se and to succeed , one had to prove actual damage.

THE BASIS OF LIABILITY IN MODERN TORT LAW

The law of torts seems to be concerned with two competing interests of the individual
 The individual’s interest in his security
 His freedom of action

Earlier in the common law, since the basic emphasis was on procedure, very little attention was
given to the mental condition of people committing torts. It was said therefore that liability in
trespass was strict ( liability imposed without inquiring into whether the injury complained of
was attributable to the defendant’s fault.
Strict liability best promotes interest in the individual security. Lord Cranworth in Rylands v.
Fletcher : it is in the interest of the victim that the law should ignore all questions relating to the
mental state of the defendant at the time of the tort , so that he can claim compensation,
irrespective of culpability or innocence of the tortfeasor.

For the second competing interest, thus freedom of action, this is hampered if the individual acts
at his peril, thus if you promote the individual’s interest in his security by imposing strict liability
, you are limiting his freedom of action. Therefore if you want to promote freedom of action ,
you have to do away with strict liability.
The foundation for the modern law of torts were developed in the nineteenth century at a time
when the intellectual climate was dominated by notions of free enterprise, open market etc. this
favoured freedom of action over security. It was argued that imposing liability on entrepreneurs
and other men of action for injuries blamelessly caused would dampen their enthusiasm and
blunt the initiative and bold action needed for the growth of the economy. The cardinal principle
therefore was “no liability without fault”.
Principally liability of Ghanaian tort law is based on fault : thus whether intentionally or
negligently . In recent times strict liability primarily because of the possibilities created by
insurance..
Intentional conduct is meant a party’s advertence to his conduct and its consequences, combined
with a desire for those consequences.
Intention requires proof, and because it is difficult to prove subjective intention, constructive
intention is used. An objective rather than a subjective approach is used for the determination of
intention. The law looks at the effect produced to determine whether the defendant’s act was so
calculated to produce such effect that an intention to do so should be imputed to him. In page 18
of Street on tort: if in the circumstances he had knowledge that certain consequences will
substantially result for his act then the defendant had the desire (intends) for those consequences.
Intent is not same as recklessness or negligence. Thus intention can only be proved where the
person doing the act knows of the substantial certainty of the result; where mere foreseeability is
proved, it might be negligence or recklessness.
In Wilkinson v. Downton, Justice Wright applied the concept thus : one question is whether the
defendant’s act was so plainly calculated to produce some effect of the kind which was produced
, that an intention to produce it ought to be imputed to the defendant , regard being had to the
fact that the effect was produced on a person proved to be in an ordinary state of health?
Negligence on the other hand is a total or partial inadvertence of the defendant to his conduct and
/ or the consequence of it, e.g. A bank security who falls asleep and a thief stealing money will
be guilty of negligence.

THE TASK OR AIM OF THE LAW OF TORTS

Professor Glanville Williams, in The Aims of the Law of Torts an article states in what he
believes to be the main aims of the law of torts to be :
 appeasement,
 justice,
 deterrence and
 compensation.
What is prevalent today is compensation. Hepple and Mathews assert in their book that “ the
primary function of the law of torts is to define the circumstances in which a person whose
interests are harmed by another may seek compensation.”
The 19th century shifted the center of gravity of torts from the intentional torts to those based on
negligence. Industrial and traffic accidents which followed in the trail of industrialization in that
century have largely been caused negligently rather than intentionally. These are predictable
which as a result people take liability insurance policies to cover them. This predictability has
led to the on-going traditional reappraisal of the task of torts law.
Those who criticizes the present approach of torts law to the compensation of personal injuries
argue that private liability insurance and other schemes of loss distribution have virtually
destroyed the basis of liability in tort , i.e fault.
For deterrence, the objective usually cited to justify fault as a basis of liability , no longer works
in a good number of cases because defendants do not satisfy the judgements from their own
pockets-their insurers do this for them-this leads to arguments for strict liability.
Kumado :For the forseable future, we are justified in assuming that Torts law will remain central
to our system of compensation for personal injuries and property damage. Its study therefore
remains a useful and productive enterprise.
BATTERY
Kofi Kumado in introduction to the law of torts in Ghana: the tort of battery is committed by the
intentional application of force to another by direct means or through an unwelcome physical
contact, irrespective of whether intent to harm or hostility is involved. Thus the tort of battery
protects the individual from unpermitted physical contact.
ELEMENTS
I of the defendant
1. The act complained of must be voluntary
2. State of mind of defendant
3. There must be physical contact with the person or plaintiff
4. Lack of consent (express, presumed and privileged contact)
 5. Positive act not omission to act

DIRECT ACT OF DEFENDANT

1. Scott v. Shepherd : shepherd threw a squib into a crowd of people igniting a chain of
catching a re-tossing of the squib. Finally, it landed in Scott’s lap where it exploded,
causing him to lose sight in one eye. Scott brought an action of trespass to the courts. per
De Grey , C.J : the question here is whether the injury received by the plaintiff arises
from the force of the original act of the defendant , or from a new force by a third person.
The real question does not turn on the lawfulness or unlawfulness of the original act…but
the true question is whether the injury is the direct and immediate act of the defendant.
The new direction and new force flows out of the first force, and are not a new trespass.
He was in the majority and found for the plaintiff.
Blackburn J(dissenting): although he dissented from the majority he rightly posited the question
thus, where the injury is immediate, an action of trespass will lie; where it is only consequential,
it must be an action on the Case. He however was not ready to accept that the injury was caused
by a direct continuation of the first act. He stated “ if any person gives that new stone a new
motion and does further mischief with it, trespass will not lie for that against the original
thrower.-I think the true question should have been , would the result have occurred had it not
been for the intervention of another independent agency?
2. Leame v. Bray Lord Ellenborough: …if the injury be committed by the immediate act
complained of the action must be trespass; if the injury be merely consequential upon that
act, an action upon the case is the proper remedy.
3. Miller v. Ag- Abban J (as he then was): The plaintiff a boy of sixteen years of age and
his friend went to the cantonments residence to sell a kente cloth he had received from his
father. After visiting three bungalows with no purchaser, they arrived at the bungalow of
the defendant, a police officer. After informing the defendant of their intention to sell the
cloth, the defendant refused to buy it at the stated price which he found expensive as the
cloth was old. He also questioned about the ownership of the cloth where he was told that
it belonged to the plaintiff’s father. The plaintiff then walked with his friend towards the
Cantonments roundabout. After a distance walk, they heard someone calling them that
Lamptey wanted to buy the cloth, but they ignored the message and treated it with
contempt. As they continued their journey they saw a car coming towards them, and
heard a shout. The car stopped near them where the driver fired a shot from a pistol.
Frightened, the plaintiff and his friend started running. They went opposite sides and as
the plaintiff’s friend was still running he heard a second shot. He fell in a gutter and when
he was picked from the mud, he saw that the plaintiff had been shot in the head and was
lying down. Sadiku , the plaintiff’s friend later discovered that it was the police officer
who fired the shot
For the defendant, he admitted shooting and injuring the plaintiff, but he said he did so as a
police officer and in the course of arresting the plaintiff whom he suspected of having committed
a crime of stealing.
The learned Judge stated thus: . It is common place that in order to found an action in assault and
battery there must have been a direct and international application of physical force to the person
of the plaintiff by the defendant such as a blow inflicted with the hand or with a weapon or some
other object.
 4. Letang v. Cooper Lord Denning M.R: If one man intentionally applies force directly to
another, the plaintiff has a cause of action in assault and battery.
5. Covell v. Laming- trespass for running defendant’s ship against plaintiff’s . when the
trespass happened , the defendant was himself on board of his ship and stood at the helm;
but there was evidence to show that he wished to steer clear of the plaintiff, and that if he
was to blame for what had happened , it was only through ignorance and unskillfulness.
Lord Ellenborough: whether the injury complained of arises directly or follows
consequentially, from the act of the defendant,-I consider as the only just and intelligible
criterion of trespass and case. If in the dark I ignorantly ride against another man on
horseback , this is undoubtedly trespass, although I was not aware of his presence till we
came into contact. It makes no difference that here the parties were sailing on shipboard.
the defendant was at the helm , and guided the motions of his vessel. The winds and the
waves were only instrumental in carrying her along in the direction which he
communicated. The force therefore proceeded from him and the injury which the plaintiff
sustained was the immediate effect of that force.

THE ACT COMPLAINED OF MUST BE VOLUNTARY

Kumado: this refers to controllability (u can control it) not whether the defendant acted willingly.
Thus the plaintiff must show that the defendant was in control of whatever caused the injury.
Gibbons v. Pepper: the defendant rode a horse which took fright and ran away with him. He
couldn’t stop the horse so he shouted to by standers to give way. The plaintiff unable to get away
fast enough was run over by the horse. The defendant tried to show that the accident was
inevitable. Held: judgment was given to the plaintiff because the defendant admitted guilty if not
he would have been acquitted and discharged based on the evidence..
However the judge made two intriguing illustrations: if I ride a horse and A whips the horse so
that it runs away with me and runs over another, A, not I, is liable in battery. But if I, by spurring
it, was the cause of such accident, then I am guilty. Similarly if A takes B’s hand and strikes C,
A is the trespasser not B.

STATE OF MIND OF DEFENDANT

The defendant must have acted intentionally (deliberately) or negligently (inadvertence or
recklessly).
Lord Denning in Letang v. Cooper doubted whether there can be a thing like negligent trespass
or battery: if one man intentionally applies force directly to another, the plaintiff has a cause of
action in assault and battery, or if you so please to describe it, in trespass to the person…if he
does not inflict injury intentionally but only unintentionally, the plaintiff has no cause of action
today in trespass. His only cause of action is in negligence and then only on proof of want of
reasonable care. Very rarely does one find an action for negligent battery, since there exist the
independent tort of negligence which is the one usually relied on by plaintiffs complaining of
negligent injury to themselves. However to succeed in an action for negligence battery, one
would have to prove that the injury complained of was the direct act of the defendant. Hence
lord Denning’s assertion may be prophetic but does not correctly represent the position of
English law today as evolved in previous cases.
The orthodox view as stated by Kumado remains that trespass and the torts deriving from it, e.g.
battery, can be committed by intentional or unintentional conduct….thus unintentional conduct
could amount to trespass.
  Miller v. Attorney General : there was intentional application of force to the defendant
 Stanley v. Powell: the defendant, who was one of a shooting party, fired at a pheasant.
One of the pellets from his gun glanced off the bough of a tree and accidentally wounded
plaintiff who was engaged in carrying cartridges and game for the party. Held: no
trespass in the absence of negligence.
 Holmes v. Mather: horses were so startled by the barking of a dog that they run with the
groom and the defendant. per Bramwell B: if the act that does an injury is an act of direct
force vi et ermis, trespass is the proper remedy (if there is any remedy) where the act is a
wrongful act, either as being willful or as being the result of negligence…where the act is
not wrongful for either of these reasons, no action is maintainable i.e though trespass
would be the proper form of action if it were wrongful.”-if it is an act of direct force and
the act is wrongful for being willful or negligent , trespass will lie.

THERE MUST BE PHYSICAL CONTACT WITH THE PERSON OF PLAINTIFF

The contact may be from person to person or through instrument.
 R.v . Cotesworth : defendant spat into plaintiff’s face ..held per Holt CJ…battery
 Fagan v. Metropolitan Police Commissioner ; car on to foot of constable ….where there
is a battery it does not matter whether the battery is inflicted directly by the body of the
offender or through the medium of some weapon or instrument controlled by the action
of the defendant.
 Cole v. Turner –Holt CJ : -first , that the least touching of another in anger is a battery.
Secondly, if two or more meet in a narrow passage, and without any violence or design of
harm, the one touches the other gently it will be no battery. Thirdly, if any of them use
violence against the other, to force his way in a rude inordinate manner, it will be a
battery: or any struggle about the passage to that degree as may do hurt will be a
battery…”
 Collins v. Wilson: the House of Lords rejected the view that the touching must be hostile
before it can be trespass.
 Pursell v. horn: It is battery to throw water over a man or to overturn a chair on which he
is sitting.
 Dodwell v. Burford: defendant struck a horse which the plaintiff was riding and the
plaintiff was thrown and injured…held : battery. Analogous with
Gibbons v. Peppe : The defendant whipped a horse so that it bolted and ran down the
claimant. It was held that the injury suffered by the plaintiff was a direct result of the
plaintiffs action. Held liable for battery.
 Agbovi V. Setordzie And Others: At a time when there was litigation pending, the
plaintiff damaged a fence situated on disputed land. Because he damaged the fence, the
police took out a warrant for his arrest. However, they were unable to locate the plaintiff
and he voluntarily appeared at the police station a few days later. The plaintiff claimed
that after he was put into a cell he was brutally beaten up and he produced a certified
medical report which stated that he had contusion and swelling in the lumber region, a
distortion of the neck with some temporary rigidity, and contusion in the abdomen which
gave rise to blood-stained, micturition for two weeks. He was kept in custody for a week
before he was taken to court. No further investigations were made into the offence. He
claimed damages for assault, battery and false imprisonment.
The three defendants, who were police officers during the material period, denied having
committed any assault or battery and urged that they had acted with impeccable propriety.
They sought the protection affording public officers in the due performance of their duties.
HOLDING-per Francois J: the court rejecting the case of the defendant and granting that of the
plaintiff awarded the plaintiff aggravated damages since he was able to prove physical injury.

LACK OF CONSENT
The plaintiff must prove that he did not consent to the contact.
Three ways:
 Express consent
 Presumption of consent 
 Privileged contact
EXPRESS CONSENT
It is not a battery if the defendant proves that the plaintiff expressly submitted to the contact.
This makes many everyday activities not battery: haircut, a surgical operation, or passionate
embrace since consent operates as a defense.
 Christopher v. Bare: defendant submitted in pleadings that plaintiff was assaulted with
his consent….held: assault must be an act against the will of a party assaulted: therefore it
cannot be said that a party has been assaulted with his own permission.
 Nash v. Sheen: the plaintiff asked a hairdresser for a permanent wave; instead he was
given tone rinse which caused him a painful rash all over his body…held: dye was
applied without the plaintiff’s express consent; the consent which was given was for a
permanent wave. So there was a battery.

PRESUMPTION OF CONSENT
In a living community there is a presumption in general to all non-hostile contacts.
Cole v. Turner, Holt C.J: if two or more meet in a narrow passage and without any violence or
design of harm, one touches the other gently, no battery. But if one in a desire to gain advantage
shoves another aside in an inordinate and violent manner, this is a trespass.

PRIVILEGED CONTACT.
These contacts are allowed by law.
 Wiffin v. Kincard : defendant touched plaintiff with constable staff; later he held him by
the collar…held: touch in order to engage plaintiff’s attention was not a battery.
 Coward v. Baddeley: the plaintiff passing through a high street stopped to look at a
house on fire. The defendant was directing a stream of water from the hose of an engine
on the fire. The plaintiff said “Don’t you see that you are spreading the flames? Why
don’t you pump on the next house?” he went away and then came back and repeated
these words several times abut did not touch the defendant.
The defendant charged the plaintiff with assaulting him and gave him into the custody of a
policeman standing near.
The defendant swore that on being interrupted by the plaintiff he told him to get out of the way
and mind his own business; that the plaintiff came up to him again , seized him by shoulder ,
violently turned him round, exposed him to danger and turned the water off the fire.
HELD: the jury did found that the plaintiff did lay hands on the defendant, intending to attract
his attention .Whereupon the judge ordered the verdict to be entered for the plaintiff.
POLLOCK C. B: the jury found that what the plaintiff did was done with the intent to attract the
attention of the defendant not with violence to justify giving the plaintiff into custody for an
assault. MARTIN B: touching a person so as merely to call his attention, … is no battery within
the definition giving by Hawkins.

Privileged contacts can be determined by looking at the :

 Nature of the act
 Intention with which the act was done

Sexual touching can amount to battery: Quarro v. US: case involving criminal battery rather
than the tort of battery. The contact complained of was the accused touching of a policeman’s
genitals. This was in the context of homosexual invitation.
The U.S Federal Court of Appeal for the District of Columbia held that : “ …the defendant is
not alleged to have physically injured the policeman , nor even to have thought of doing so.
Nevertheless we recognized in Beausoliel that non-violent actions involving sexual misconduct
may constitute assaults. In such a case, threat or danger of physical suffering or injury in the
ordinary sense is not necessary. The injury suffered by the innocent victim may be the fear,
shame, humiliation, and mental anguish caused by the assault.”[assault here is really meant
battery]
POSITIVE ACT NOT OMMISSION TO ACT
The maxim is “not doing is not trespass”.
Innes v. Wylie : the plaintiff who had been expelled from a club attempted to enter the rooms of
the club, but was prevented by a policeman who stood in the doorway and refused to let the
plaintiff pass…..Lord Denman, CJ instructing the jury said at 263: “you will say , will say
whether , on the evidence, you think the policeman committed an assault on the plaintiff , or was
merely passive. If the policeman was entirely passive like a door or a wall put to prevent the
plaintiff from entering the room, and simply obstructing the entrance of the plaintiff, no assault
has been committed on the plaintiff and your verdict will be for the defendant. The question is
did the policeman take any active measures to prevent the plaintiff from entering the room, or
did he stand in the doorway passive and not move at all.” They found for the plaintiff hence the
police man presumably had taken active measures to prevent the plaintiff from entering.

UNLAWFUL ARREST

The Common Law

The Criminal Procedure Code, 1960(Act 30) as amended by N.R.C.D. 235, sections 3,6,7,8,9,10
Articles 14 and 21 of the 1992 Constitution

COMMON LAW RULES-

 Christie V. Leachinsky
The appellants who were Liverpool police officers arrested the respondent in his warehouse in
Liverpool, without a warrant. At the time, they suspected and had reasonable grounds for
suspecting that he had stolen or feloniously received, at Leicester, a bale of cloth then in the
warehouse, but they did not give this as the ground of the arrest. Instead they said they were
arresting him on a charge of “unlawful possession” under the Liverpool Corporation Act, 1921,
though in the circumstances, the Act gave them no power of arrest without warrant. The
respondent was taken to the police station and brought before a magistrate on the unlawful
possession charge. In an action for false imprisonment, the appellants sought to justify the arrest
and detention on the common law ground. Per Viscount Simons
If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a
sort which does not require a warrant, he must in ordinary circumstances inform the person
arrested of the true ground of arrest. He is not entitled to keep the true ground to himself or to
give a reason which is not true. In other words, a citizen is entitled to know on what charge or on
suspicion of what crime he is seized.
A person arrested without warrant must be informed of the ground for the arrest. A.N.E.
Amissah in Criminal Procedure in Ghana: the cause of arrest given must be the real cause not
some false reason given even to gain time.
In Asante v. The Republic, it was held that failure to inform the person being arrested of the
cause of his arrest made the arrest unlawful and therefore entitled that person to resist arrest,
using whatever force was necessary to do so.
One of the possible situation which may arise when the person arrested is informed of the reason
for his arrest is on suspicion that he has committed one offence but is subsequently charged with
a different offence, Lord Simmonds had this to say- an arrest does not become wrongful merely
because the constable arrests a man for one felony , say, a murder , and he is subsequently
charged with another felony, say, manslaughter … it is clear that the constable has not been
guilty of an illegal arrest, if he reasonably suspected that murder had been done.
If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain
exceptions, is liable for false imprisonment.-if this is not done and the person is arrested, the
police officer is liable for false imprisonment.
The requirement that the person arrested should be informed of the reason why he is seized
naturally does not exist if the circumstances are such that he must know the general nature of the
alleged offence for which he is detained.-where the person is already aware of the nature of the
alleged offence it is not mandatory that the policeman informs him.
The requirement that he should be so informed does not mean that technical or precise language
need be used. The matter is a matter of substance, and turns on the elementary proposition that,
in this country, a person is , prima facie , entitled to his freedom and is only required to submit to
restraints on his freedom if he knows in substance the reasons why it is claimed that this restraint
should be imposed.-the person must be informed in simple language of the substance of the
arrest and not technical.-John Lewis V. Tims
The person arrested cannot complain that he has not been supplied with the above information,
as and when he should be if he himself produces the situation which makes it practically
impossible to inform him e.g. by immediate counterattack or by running away… These
principles equally apply to a private person who arrests on suspicion.”-a person should not
complain not to have received the information if he makes it impossible for it to be done. –
assumaning bugembibi

CRIMINAL PROCEDURE CODE, 1960(ACT 30) AS AMENDED BY N.R.C.D. 235

There are two types of arrest under this code:
  Arrest with warrant: here there can be no action, eg. False imprisonment, this is
because the warrant is issued by a judicial officer who enjoys immunity from action
under the constitution.
 Arrest without warrant.
ARREST WITH A WARRANT: SECTIONS 71-81 OF ACT 30
Sections 72-73(1) provide that the warrant can be issued only by a judge or magistrate upon a
complaint or charge made before him on oath.
Section 73(2) requires that the warrant must:
State briefly the offence with which the person against whom it is issued is charged; offence
Indicate the name or other description of the person: name of the offender
Order the person or persons to whom it is directed to apprehend the person against whom it is
issued and bring him before the issuing court or some other court with jurisdiction over the
matter to answer the charge(s) against him and to be further dealt with according to law.
(3)The warrant remains in force until executed or cancelled by the issuing court.
Under section 75, the warrant may be directed to more officers or persons than one.
Under section 76, the person executing the warrant is required without unnecessary delay, to
bring the person arrested before the court mentioned in the warrant with an endorsement
showing time and place of the execution.
Where a person has been lawfully arrested the police can search the premises or his person and
seize material relevant to the prosecution of any crime committed by any person.
ARREST WITHOUT WARRANT
Arrest without warrant may either be effected by a police officer , law enforcement agent having
police powers or a private individual.
A.N.E. Amissah explains that as a result of the difficulty in distinguishing between a felony and
misdemeanor, arrests by private individuals have been limited.
ARREST BY A PRIVATE PERSON
section 12 of Act 30 as amended by the Criminal Code (Amendment) Decree 1975 (NRCD 235).
A private person may arrest without warrant any person who in his presence commits:
Any offence involving the use of force or violence;
Any offence whereby bodily harm is caused to any person
Any offence in the nature of stealing or fraud;
Any offence involving injury to public property; or
Any offence involving injury to property owned by, or in the lawful care or custody of , that
private person.
(2) a private person may arrest without warrant any person whom he reasonably suspects of
having committed any offence mentioned above, provided that an offence of that nature has
infact been committed.
The case of g & Sons explains this. : the plaintiff was for nine years assistant manager at a
bookstall of the defendant. Early in 1912, at the half yearly stock taking, deficiencies were
discovered. It was clear this must be due to pilfering on the part of one or more of the
defendants’ servants. Stocks were taken in February, and April and further deficiencies were
noted. The defendants, in order to detect the culprit set a trap. Copies of the book “Traffic” were
marked and delivered at the bookstall at King’s Cross. An agent of the defendants went to a shop
at Stains kept by the plaintiff and his wife to purchase a copy of the book. One of the marked
ones was sold to him. The book had been taken by the plaintiff on 15 June 1912 from the
bookstall without payment having been made and without the knowledge of the manger or the
assistants. After inquires it was discovered that the plaintiff had also breached his contract by
setting up, together with his wife, a rival company. The plaintiff was questioned and he gave
unsatisfactory answers as to how he came to possess the marked book. Mr. Hornby honestly
believed the plaintiff to have been responsible for the thefts which had been going on , and
handed him over to the police . He was taken to the police court and charged with stealing the
book. He was eventually acquitted. His defence, which was accepted by the jury, was that, in
taking the book, he had no felonious intent. In the substantive suit, the defendant did not allege
that he had stolen the book and did not associate him with the earlier thefts. He instituted his
action for false imprisonment and malicious prosecution.
Sir Rufus C.J. relying on the statement of law as is to be found in Bullen & Leake’s Precedents
of Pleading (3rd ed) p. 797 stated the applicable law as follows:
“ at common law , a police constable may arrest a person if he has reasonable cause to suspect
that a felony has been committed although it afterwards appears that no felony has been
committed but that is not so, when a private person makes or causes the arrest , for to justify his
action he must prove , inter alia, that a felony has actually been committed… A private
individual is justified in himself arresting a person or ordering him to be arrested where a felony
has been committed and he has reasonable grounds of suspicion that the person accused is guilty
of it- that means the felony for which he has been arrested….where a person, instead of having
recourse to legal proceedings by applying for a judicial warrant for arrest or laying an
information or issuing other process well known to the law, gives another into custody, he takes
a risk upon himself by which he must abide, and , if in the result, it turns out that the person
arrested was innocent , and that therefore the arrest was wrongful, he cannot plead any lawful
excuse unless he can bring himself within the proposition of law which I have enunciated in this
judgment . in this case although the defendants thought and indeed it appeared at they were
justified in thinking , that the plaintiff was the person who had committed the theft , it turned out
in fact that the were wrong . the felony for which they have handed the plaintiff into custody had
not in fact been committed, and , therefore , the very basis upon which they must rest any
defence of lawful excuse for the wrongful arrest of another fails them in this case. Although I am
quite satisfied , not only that they acted with perfect bona fide in the matter but were genuinely
convinced after reasonable inquiry that they had in fact caught the perpetrator of the crime, it
now turns out that they were mistaken, and it cannot be established that the crime had been
committed for which they gave the plaintiff into custody; they have failed to justify in law the
arrest, and there must , therefore , be judgment for the plaintiff…”

The three conditions to be satisfied in arresting a private individual on suspicion therefore are :
The basis for the suspicicon must be reasonable
The arrest must relate to only the five offences listed above .
The offence must have actually been committed by the person being arrested.

ARREST BY A POLICE OFFICER: SECTION 10 OF ACT 30 Here the law provides for two
scenarios:
1. A police officer may arrest without warrant any person who—
commits an offence in his presence;
obstructs a police officer in the execution of his duty;
has escaped or attempts to escape from lawful custody;
has in his possession any implement adapted or intended for use in unlawfully entering any
building, and who gives no reasonable excuse for his possession of it; or
has in his possession anything which may reasonably be suspected to be stolen property.
(2) A police officer may arrest without warrant any person he suspects upon reasonable grounds
—
of having committed an offence;
of being about to commit an offence, where there is no other practicable way of preventing the
commission of the offence;
of being about to commit an offence, where he finds such person in any highway, yard, building
or other place during the night;
of being a person for whom a warrant of arrest has been issued by a court;
of being a deserter from the Armed Forces; or
of having been concerned in any act committed outside Ghana which, if committed in Ghana,
would have been punishable as an offence, and for which he is, under any enactment, liable to be
arrested and detained in Ghana.
On arrest on suspicion by a police officer , the law requires that the grounds for suspecting the
arrestee must be reasonable. What then is reasonable suspicion?
Dallison v. Caffery: an amount of 173 pounds was stolen from the office of a solicitor at
Dunstable. A man named Dallison was arrested and charged with the offence. At the Quarter
Sessions, counsel for the prosecution offered no evidence against the plaintiff , stating that it was
a case of mistaken identity. Accordingly, the plaintiff was acquitted and discharged . the police
officer in charge was Caffery. The plaintiff sued Caffery for false imprisonment and malicious
prosecution. The judge dismissed the claim. He appealed . Lord Denning was satisfied that the
defendant had reasonable cause for suspecting that the plaintiff had committed the crime. The
test for reasonableness for the arrest is objective namely:
“ whether a reasonable man, assumed to know the law and possessed of the information which in
fact was possessed by the defendant would believe that there was reasonable and probable
cause.”
GENERAL PROVISIONS RELATING TO ARREST
SECTION 3 OF ACT 30: to arrest a person you must actually touch or confine the body of the
arrestee, unless he submits to custody by word or deed.
ASANTE V. REPUBLIC: K lodged a complaint that she had been assaulted by the appellant.
An escort police constable was detailed to go with her to invite the appellant to the police station.
The police constable showed his identity card to the appellant and invited him to the police
station. The appellant refused to go. The police constable did not tell him why he was wanted at
the station. Upon his refusal , the police constable seized his ignition key thus preventing him
from driving away. To retrieve the key , the appellant knocked the police constable down and
whilst the police constable was on the ground, kicked him injuring him and damaging his
trousers. The appellant was convicted of two charges of assault on the police constable . he
appealed arguing :
His arrest was unlawful on the evidence
Ipso facto, he was justified in resisting unlawful arrest and
His conviction on charge 2 was bad because the value of the property rather than the value of
damage was considered.
His appeal was allowed on the ground that the arrest was unlawful because :
The police officer failed to put the appellant under lawful arrest by not informing him of the
cause of the arrest as required by section 10 of Act 30 which empowers a police man to arrest
without a warrant
The police officer committed assault on the appellant by refusing to leave the spot where the
appellant was and seizing his ignition key which was not an integral part of the process of
arresting the appellant.
Anterkyi J stated at 193 : and if a the record shows the EPW1 merely told the appellant that he
was wanted at , or being invited to the police station , the appellant was not legally obliged to go
there for a mere chat.
SECTION 4: if you are arresting A by warrant and you believe he has entered a house , the
occupier is required to afford you reasonable facilities to search the place for the person. If this
fails you can break into the house to effect the arrest.
SECTION 5: the person effecting the arrest may likewise break out to liberate himself.
SECTION 6: person arrested is to be subjected to no more restraint than is necessary to prevent
his escape. DPP v.hawkson, Lewis v. Chief Constable, article 15 of 1992 Constitution.
Article 15:
The dignity of all persosn shall be inviolable
No person shall , whether or not he is arrested , restricted or retained be subjected to – (a) Toture
or other cruel, inhuman or degrading treatment or punishment;
(b) Any other condition that detracts or is likely to detract from his dignity and worth as a human
being
SECTION 7:unless the arrestee is caught in flagrante delicto , the arrestor shall inform the
arrestee of the cause of the arrest; where he is acting under a warrant , notify the arrestee of the
substance of the warrant and show it to him if he so desires.
In Yaw v Kobina the plaintiff had earlier lodged a complaint for the ejection of his caretakers
from the farm. Until late 1958, he was the chief of Yamfo, a town near Sunyani. He was
destooled and notice to that effect was published in the Gazette of November 1958. He was
further ordered to hand over all the stool properties to Nana Boama II, the new chief, who was
authorized to seize and take possession of such properties. He was allegedly restrained when he
would not give up the black stools and imprisoned in sunyani. Police justification was that he
was arrested and detained for committing in their presence the offence of hindering the recovery
of the stool property. He further alleged that he was not told of the reason why he was arrested.
The plaintiff sued for 5000 pounds damages for unlawful arrest and false imprisonment.
Held: the arrest and detention were not unlawful and the plaintiff was released , as soon as the
police decided not to prosecuted him. It was not unlawful because it was in consequence of his
refusal to hand over the black stools, an act which was an offence liable to summary conviction
under the Statutes Law(Amendment)(No.2) Act, 1957, s. 7. In the circumstances , he ought to
have known the reason for his detention and it was not necessary for him to be told.
SECTION 8: the arrestee should be decently searched and all things found on him should be
placed in safe custody
SECTION 9: the arrestee must be taken with all reasonable dispatch to a police station or other
place where the arrestee can be taken and to be told, without delay, of the charge against him.
The arrestee is to be given reasonable facilities for obtaining legal advice taking steps to furnish
bail and making arrangements for his defense or release.
SECTION 14: any private person arresting without warrant shall without unnecessary delay hand
arrestee over to a police officer/station or take him to nearest police station.
SECTOIN 15: a person taken into custody without warrant shall be released not later than 48
hours unless he is earlier brought before a court. He can be bonded with or without sureties to
appear before such court or police station or place and at such time as may be stated in the bond.
ARTICLE 14 OF THE CONSTITUTION, 1992
(1) Every person shall be entitled to his personal liberty and no person shall be deprived of his
personal liberty except in the following cases and in accordance with procedure permitted by law
-
in execution of a sentence or order of a court in respect of a criminal offence of which he has
been convicted; or
in execution of an order of a court punishing him for contempt of court; or
for the purpose of bringing him before a court in execution of an order of a court; or
in the case of a person suffering from an infectious or contagious disease, a person of unsound
mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment
or the protection of the community; or
for the purpose of the education or welfare of a person who has not attained the age of eighteen
years; or
for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the
expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of
restricting that person while he is being lawfully conveyed through Ghana in the course of his
extradition or removal from one country to another; or
upon reasonable suspicion of his having committed or being about to commit a criminal offence
under the laws of Ghana.
A person who is arrested, restricted or detained shall be informed immediately, in a language that
he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer
of his choice.-CHRISTIE V.
LEACHINSKY
A person who is arrested, restricted or detained -
for the purpose of bringing him before a court in execution of an order of a court; orqa
upon reasonable suspicion of his having committed or being about to commit a criminal offence
under the laws of Ghana, and who is not released, shall be brought before a court within forty-
eight hours after the arrest, restriction or detention. SECTION 15
Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this
article is not tried within a reasonable time, then, without prejudice to any further proceedings
that may be brought against him, he shall be released whether unconditionally or upon
reasonable conditions, including in particular, conditions reasonably necessary to ensure that he
appears at a later date for trial or for proceedings preliminary to trial.
A person who is unlawfully arrested, restricted or detained by any other person shall be entitled
to compensation from that other person. (6) Where a person is convicted and sentenced to a term
of imprisonment for an offence, any period he has spent in lawful custody in respect of that
offence before the completion of his trial shall be taken into account in imposing the term of
imprisonment.
(7) Where a person who has served the whole or a part of his sentence is acquitted on a appeal by
a court, other than the Supreme Court, the court may certify to the Supreme Court that the person
acquitted be paid compensation; and the Supreme Court may, upon examination of all the facts
and the certificate of the court concerned, award such compensation as it may think fit; or, where
the acquittal is by the Supreme Court, it may order compensation to be paid to the person
acquitted.

ARTICLE 21(1): all persons shall have the right to –

g. Freedom of movement which means the right to move freely in Ghana, the right to leave and
to enter Ghana and immunity from expulsion from Ghana.
(2) a restriction on a person’s freedom of movement by his lawful detention shall not be held to
be inconsistent with or in contravention of this article.
FALSE IMPRISONMENT
It seeks to protect a person’s freedom from physical restraint( i.e. protects one’s freedom of
movement). This right is also protected by articles 14, 15, 21(1)(g);(2);(4) and (5) of the 1992
constitution.
Street on torts 13th edition : an act of the defendant which directly and intentionally ( or possibly
negligently) causes the confinement of the claimant within an area delimited by the
defendant….from the saysers case , false imprisonment cannot be committed negligently.
The act must be direct , intentionally caused by the defendant and the confinement of the
plaintiff to an area delimited by the defendant.
False imprisonment is actionable per se.
False imprisonment is founded on two main ingredients :
Imprisonment and
Absence of justification.
Imprisonment has said to be “ the restraint of a man’s liberty , whether it be in the open field , or
in het stocks or cage, or in the gaol. And , in all these places , the party so restrained is said t be a
prisoner , so long as he hath not his liberty freely to go at all times to all places whither he will
without bail or main prize.”
In v. Riddiford: the defendant, a beer-house operator, employed the plaintiff to carry on his
business at weekly wages determinable, under the agreement on a month’s notice. The defendant
gave the plaintiff a week’s notice, checked the accounts and asked the plaintiff to make up the
difference . the plaintiff refused on the ground that he had not been given the stipulated month’s
notice. The defendant brought in two police officers. One of the officers when the plaintiff
decided to go upstairs refused to let him go. Later he was allowed to go accompanied. When he
persisted in refusing to make the difference , he was taken into custody and charged with
embezzlement. He was discharged . the plaintiff then brought an action for false imprisonment.
In directing the jury , the judge told them to consider three questions : firstly, whether was any
imprisonment? By whom? And any legal justification for it ?
On the first point , the told them that “ to constitute an imprisonment, it was not necessary that
the person should be locked up within four walls, but that if he was restrained in his freedom of
action by another , that was an act of imprisonment…” this direction on appeal was held to be a
correct statement of the law.
The restraint in order to amount to imprisonment must be total. Thus a person must be confined
in all directions. Where it is partial , thus there is a reasonable means of escape, then it is not
false imprisonment. The case of Bird v. Jones is instructive . in August 1843, the Hammer smith
Company cordoned off part of their bridge , placed seats on it and charged spectators for
viewing a regatta. The plaintiff objected to this and forced his way into the enclosure , where he
was stopped by two policemen. He was prevented from proceeding across the bridge , but was
allowed to go back the way he came. He refused, and in the course of proceedings for his arrest
the question arose whether he had been imprisoned on the bridge. It was held that this was not an
‘imprisonment’ and the defendant was not liable for the subsequent arrest.
COLERIDGE J : And I am of opinion that there was no imprisonment . to call it so appears to
me to confound partial obstruction and disturbance with total obstruction and detention. A
person many have its boundary large or narrow visible and tangible or though real, still in the
conception only; it may itself be moveable or fixed : but a boundary it must have; and that
boundary the party imprisoned must be prevented from passing; he must be prevented form
leaving that place , within the ambit of which the party imprisoning would confine him, except
by prison-breach. Some confusion seems to me to arise from confounding imprisonment of the
body with mere loss of freedom : it is one part of the definition of freedom to be able to go
where–soever one pleases; but imprisonment is something more than the mere loss of this power
; it includes the notion of restraint within some limits defined by a will or power exterior to our
own…
LORD DENMAN [DISSENTING] : it is said that the party here was at liberty to go in another
direction. I am not sure that in fact he was ,because the same unlawful power which prevented
him from taking one course might in case o acquiescence , have refused him any other. But this
liberty to do something else does not appear to me to affect the question of imprisonment as long
as I am prevented from doing what I have a right to do , of what importance is it hat I am
permitted to do something else? How does the imposition of an unlawful condition shew that I a
m not restrained ? if a I am locked in a room am I not imprisoned because I might effect my
escape through a window or because I might find an exit dangerous or inconvenient to myself ,
as by wadin throught watere bor by taking a route so circuitous that may necessary affairs would
suffer by delay? It appears to me that this is total deprivation of of liberty with reference to the
purpose for which he lawfully wished to employ his liberty : and being effected y by force, it is
not the mere obstruction of a way, but a restraint to the person.
Again in the case of Wright v. Wilson : where A has a chamber adjoining to the chamber of B
and has a door that opens into it, by which there is a passage to go out; and A has another door,
which C stops, so that A cannot go out by that . Holt C.J stated that an action in false
imprisonment will fail when a man has two doors through which he can go out and one is
blocked , leving the other free, though the second one , he can go through only as a trespasser.
However an escape route which exposes A to danger is unreasonable and amounts to false
imprisonment.
The question therefore is what do we mean b the means of escape being reasonable ?
In the case of sayers v. Harlow Urban D.C: The plaintiff having paid for admission entered a
cubicle in a public lavatory provided and maintained by the defendants. Finding that there was
no handle on the inside of the door and no means of opening the cubicle , the plaintiff tried for
some ten to fifteen minutes to attract attention and then tried to see if there was some way of
climbing out of the cubicle. Holding the pipe of the lavatory cistern with one hand and the other
on top of the door, she placed one foot on the seat of the water closed and balanced the other on
the toilet roll and its fixture. Realizing that it would be impossible to climb out , she started to
come down, slipped and injured herself.
In her action against the defendants the plaintiffs alleged : that there was an implied warranty on
the part of the defendants in regard to the safety of the cubicle, and that the defendatns were in
breach of the warranty; and negligence on the part of the defendants , their servants or agents in
failing to inspect or repair the handle of the door of the cubicle or to warn members of the public
of the condition of the cubicle. The trial judge found that there was a breach of duty on the part
of the defendatns , but that the plaintiff was in no danger on that account , and he haeld that as
the plaintiff chose to embark on a dangerous manoeuvre, she must bear the consequences of her
action. The plaintiff then appealed
Lord Evershed MR asserted that :applying the ordinary tests of reasaonbleness, it was not an
unreasonable thing to do nor was it indulging in grave risk for the plaintiff to see wheterhe her
first impression was right, namely , that by standing on the seat she might be able to hoist herself
out over the door.
Morris LJ also assrted that “ the most natural and reasonable action on the part of someone who
finds herself undesignedly confined is to seek the means of escape.”
MERELY TO FAIL TO FACILITATE THE DEPARTURE OF A PERSON FROM ONE’S
PREMISES DOES NOT AMOUNT TO FASLSE IMPSRIONMENT
Heard v. weardale steel , coal and coke co. : a miner went down into the defendnat’s coal mine
on the agreement that he would work for a fixed time and ,at the expiration of tha time , he
would be conveyed to the surface by means of machinery supplied by the employers. He
stopped work earlier in breach of his contract and demanded to be conveyed to the surface at
once. He employers refused and remained in the mine until the agreed closing time. In an action
for false imprisonment it was held that he had no cause of action because the miner had no right
to use the machinery whenever he wants. Thererfore fore the period he reamaned in the mine till
the endo f his regular shift he had not in law been imprisoned.
VISCOUNT HALDANE LC: my lords , by the laws of this country no man can be restrained of
his liberty without authority in law. That is a proposition the maintenance of which is of great
importance; but at the same time it is a proposition which must be read in relation to other
propositions which are equally important . if a man chooses to go into a dangerous place at the
bottom of a quarry or the bottom of a mine; from which by the nature of physical circumstances
he cannot escape, it does not follow from the proposition I have enunciated about liberty that he
can compel the owner to bring him up out of it. the owner may or may not be under a duty
arising from circumstances on broad grounds the neglect of which may possibly involve him in a
criminal charge or a civil liability. It is unnecessary to discuss the conditions and circumstances
which might bring about such a result, because they have in the view I take nothing to do with
false imprisonment.
My lords there is another proposition which has to be borne in mind , and that is the application
of the maxim volenti non fit injuria. If a man gets into an express train and the doors are locked
pending its arrival at its destination, he is not entitled merely because the train has been stopped
by signal to call for the doors to be opened to let him out. He has entered the train on the terms
that he is to be conveyed to a certain station without the opportunity of getting out before that ,
and the must abide by the terms on which he has entered the train. So when a man goes down a
mine , form which access to the surface does not exist in the absence of special facilities given
on the part of the owner of the mine, he is only entitled to the use of these facilities (subject
possibly to the exceptional circumstances to which I have alluded) on the terms on which he has
entered. …it is not false imprisonment to hold a man to the conditions he has accepted when he
goes down a mine.
Flowing from this therefore , it can be said that if A enters a train or a bus the doors are locked
and it stops only at certain points, if it stops for some reason in between , A cannot demand to be
allowed to go out there . if he demands and is refused , this is no false imprisonment.
Another case is Robinson v. Balmain New Ferry Coy Ltd: the defendants- respondent carry on
and operate the business of harbor steam ferry between Sydney and Balmain. They had a wharf
on the Sydney side of the ferry and you had to enter by a turnstile and go out by another if you
want. The appellant entered the wharf intending to cross to Balmain by one of the steamers .
discovering that the next steamer would come in twenty minutes time, he decided to leave but
refused to pay the toll at the exit turnstile (one penny). After some struggle , he succeeded in
leaving . he borught an action for false imprisonment; judgement was given against the
company. It appealed and succeeded . on further appeal by the appellant to the Privy Council, it
was held that the toll imposed was reasonable so no liability in false imprisonment. It was further
held that failure to provide gratuitous exit from the premises to the appellant did not constitute
false imprisonment.
Lord Loreburn LC: the plaintiff paid a penny on entering the wharf to stay there till the boat
should start and then be taken by the boat to the other side. The defendants were admittedly
always ready and willing to carry out their part of this contract. Then the plaintiff changed his
mind and wished to go back. The rules as to the exit from the wharf by the turnstile required a
penny for any person who went through . this the plaintiff refused to pay and he was by force
prevented from going throught the turnstile. He then claimed damages for assault and false
imprisonment.
There was no complaint , at all events there was no question left to the jury by the plaintiff’s
request , of any excessive violence, and in the circumstances admitted it is clear to their
Lordships that there was no false imprisonment at all. The plaintiff was merely called upon to
leave the wharf in the way in which he contracted to leave it. there is no law requiring the
defendants to make the exit from their premises gratuitous to people who come here upon a
definite contract which involves their leaving the wharf by another way; and the defendants were
entitled to resist a forcible passage through their turnstile.
The question whether the notice which was affixed to these premises was bought home to the
knowledge of the plaintiff is immaterial , because the notice itself is immaterial.
When the plaintiff entered the defendants’ premises there was nothing agreed as to the terms on
which he might go back , because neither party contemplated his going back . When he desired
to do so the defendants were entitled to impose a reasonable condition before allowing him to
pass thought their turnstile from a place to which he had gone of his own free will. The payment
of a penny was a quite fair condition. And if he did not choose to comply with it , the defendants
were not bound to let him through. He could proceed on the journey he had contracted for.
It can be concluded from this case that a passenger on a trotro , train , plane etc. cannot demand
to get off at an unscheduled point. This however must not be treated as implying that you can
detain people to enforce a contract. In sunbolf v. Alford, the defendant innkeeper detained the
plaintiff-customer for not paying his bill. It was held to be false imprisonment.
Imprisonment can result from words or acts or both. For instance A visits his boyfriend at his
partment; then informs B that their affair is over. B starts screaming and threatening to create a
scene, if A leaves the apartment. This goes on for ten minutes . False imprisonment? ; a points a
loaded gun at B and says don’t move …false imprisonemtn?
MUST THE PLAINTIFF BE AWARE OF THE RESTRAINT IN ORDER TO SUCEED?
HERRING V. BOYLE: A mother took her son to a school of which the defendant was
schoolmaster. During the Christmas holiday period, it appears that this schoolmaster refused an
application by the mother that the boy should be given up to her. Apparently the schoolmaster
had said that unless the mother paid the fees due in respect of the boy he could not be allowed to
go on holiday. The Court of Exchequer thought that this conduct by the schoolmaster did not
constitute false imprisonment since; inter alia this conduct was not known to the boy alleged to
have be unlawfully detained.
Baron Bolland said : … I cannot find anything upon the notes of the learned judge which shows
that the plaintiff was at all cognizant of any restraint. There are many cases which show that it is
not necessary , to constitute an imprisonment that the hand should be laid upon the person; but
in no case has any conduct been held to amount to an imprisonment in the absence of the party
supposed to be imprisoned. An officer may make an arrest without laying his hand on the party
arrested; but in the present case, as far as we know , the boy may have been willing to stay ; he
does not appear to have been cognizant of any restraint and there was no evidence of any act
whatsoever done by the defndnnat in his presence
MEERING V. GRAHAM-WHITE AVIATION : The plaintiff was suspected of stealing some
property of the defendant company. He was asked to report for an interview at the company’s
office. Security employees of the defendant company were posted outside the office and
instructed not to permit the plaintiff to leave. However the presence f thes guards outside the
office was not known to the plaintiff.
Duke L.J , dissenting was of the opinion that there was no imprisonment, while Warrington L.J
concentrated on the sufficiency of the restraint imposed on the plaintiff without adverting to the
issue whether the paltintiff’s lack of knowledge of his restraint was material.
Atkin L.J : it appears to mae that a person could be imprisoned without his knowing it . I think a
person can be imprisoned while he is asleep, while he is in a ste of drunkenness while he is
unconscious, and while he is a lunatic…so a man might in fact ..be imprisoned by having the key
of a door turned against him, so that he is imprisoned in a room in fact although he does not
know the key has been turned…”
Murray v . Ministry of Defence : the plaintiff was suspected of being involved in the collection
of money for the purchase of arms for the IRA. Corporal Davies and five other soldiers went to
her house at 7:00 am . the plaintiff opened the door and Coporal Davies and three others
entered . the resto f the family were gathered in one room , and the plaintiff , accompanied by
Corporal Davies went upstairs to get dressed . when they returned downstairs at about 7 : 30
am, Corporal Davies said ‘ as a member of Her Majesty’s forces, I arrest you.’ In an action for
false imprisonement , the plaintiff alleged that she had been detained unlawfully from 7.00 a.m
until 7.30 a.m , and althought thecourt was sure that the plaintiff did realize that she was being
restrained during that time, the House of Lords nevertheless discuseed whether a person can be
‘imprisoned’ without being aware of the fact.
Held : dismissing the appeal , that the defendnant s were not liable as it was reasonable under
Northern Ireland (Emergency Provisions) act 1978 to delay formal words of arrest until the
premises had been searched . however it was also indicated that a person can be restrained
without being aware of it.
Lord Griffiths ; although on the facts of this case I a m sure that the plaintiff was aware of the
restraint on her liberty from 7.00 a.m I cannot agree with the Court of Appeal that it is an
essential element of the tort of false imprisonment hat the victim should be aware of the fact of
denial of liberty.
Under article 14(5) : any person who is unlawfully arrested , restricted or detained by any
other person shall be tntilted to compensation therefore from that other person.”
There are two shools of thought. Date – Bah in “ article 15 of the constitution and the torto f false
imprsonement’ sides with Atkin , and shares the view that knowledge of the consent is not a sine
qua non, since other persons such as drunkards, lunatics , children can be imprisoned with
impunity. This view however is criticeized by Veitch in ‘ constitutional protection of liberty and
the tort of false imprisonement’ tha the provision is capable of supporting either school.
Kumado posits that the framers may have known of the existence of the controversy but chose
not to take sides. And that the issue of consciousness must be treated as an award issue. If the
plaintiff is aware then he is entitled to higher compensation and if not then nominal damages
may be justified.
Where A instigates the police to arrest B, if the arrest becomes unlawful, A is liable for false
imprisonment because it is the direct act of A, which caused the arrest in those circumstances. If
however , A informs the police about a state of affairs, they institute their own investigations and
arrest B, then there is no false imprisonment, even if the arrest so effected is unlawful because
the arrest does not result from the direct act of A which caused the arrest in those circumstances.
If however , A informs the police about a state of affairs and they institute their own
investigations and arrest B, then there is no false imprisonment, even if the arrest so effected is
unlawful because the arrest does not result from the direct act of A.
The proper test is laid by Bingham M.R. in Davidson v. Chief Constable :
“whether what [the informer] did went beyond laying information before police officers for them
to take such action as they saw fit and amounted to some direction or procuring, or direct
request, or direct encouragement that they should act by way of arresting…
Onogen v. Leventis : the plaintiff was a store-keeper of the defendant company , in charge of the
company’s drinkables and provisions store at Market Circle in Takoradi. It appeared that he
company lost 70 cases of Heineken beer and the general agent of the company informed the
police. The plaintiff was arrested and detained for 26 hours before being granted bail.
Subsequently , he was prosecuted and was acquitted. He then brought an action nfor false
imprisonment, wrongful dismissal and malicious prosecution . adumua-Bossman J (as he then
was s) quoted Salmond on Torts (10th ed. ) at p.374 with approval as follows :
“ an action for false imprisonment will lie against any person who authorizes or directs the
unlawful arrest or detention of the plaintiff by a merely ministerial officer of the law … he
makes that ministerial officer his agent and is responsible for any arrest or detention so procured
or authorized , as if it were his act . It is necessary, however, even in such a case to prove actual
direction or authorization, such as is sufficient to make the ministerial officer the agent of the
defendant. Mere information given to such an officer , on which he acts at his own discretion is
no ground of liability . so no false imprisonment.”
AUSTIN V. DOWLING: the plaintiff was a lodger in the defendant’s premises. It appeared he
owed some money, was sued and paid. But he still owed a small sum. One day , when he
returned to his lodgings , he discovered hatt the drawers in his bedroom had been emptied and
his private cupboards and thir contents removed. He went to report at Clifton Police Station and
was accompanied back at his request by a police officer. At the house the plaintiff demanded
from the defdnant’s wife his property and was refused . the plaintiff went upstairs , broke the
door of a bed room in the defendant’s house occupied by another lodger with his shoulders and
a screw driver.
When he returrened downstairs , the defendnatn’s wife handed the plaintiff over to the police for
the felony of breaking opne the door. He wastaken into custody andwalked to the plice station.
After hearing the cricumstances of het case the inspector declined to detain the plaintiff unless
the defennadnt signed the charge sheet. The defendnatn signed the charge sheet . the plaintiff
was charged with “feloniously breaking and entereing into a bed-room” in th defendant’s house.
The plaintiff was detained for 17 and half hours before being brought before magistrates where
he was discharged. He brught action for false imprisonment and malicious prosecution and was
non-suited . he appealed. Willes J , Keating J and Montague Smith J said there was evidence of
false imprisonment because signing the charge sheet after police say : no detention unless sos
signed , amounts to authorizing the police to imprison the paintiff –it was the doing of an act
which caused the plaintiff to be kept in custody.
Amadjei v. Opoku Ware: two policemen on normal patrol duty were told by the respondents that
A,B,C,D and E were holding an unlawful meeting and should be arrested. When the police were
interviewing the appellant , the respondents came and ordered their arrest, whereupon one
policeman said “you are arrested.” . shortly afterwards the appellants were taken by the police to
the respondent’s house . they were followed by a large crowd. At the Ahenfie the apolice asked
the respondent what offence the appellants had committed . when they received no satisfactory
answer the police allowed the appellants to go home. The whole incident lasted two hours. The
appellants an action in the High Court claiming from the respondent damages for false
imprisonemtn . Ollenu J (as he then was ) dismissed the appellants’ action holding that ehy ahd
failsed to prove arrest , that their evidence was not to be believed, and that “ even if the
defendant ( respondent) did request the police to arrest the police were in no way affected by the
said request and threats. They treated it with contempt. On appeal, Ollenu’s judgment was
reversed., it was held that the facts disclosed authorization by the respondents of the appellants’
arrest and unlawful detention. So it amounts to false imprisonment and the appeal was allowed.
Blay JSC: in my view the evidence on record shows that the appellnants were arrested and detai
ed by the police and had suffered restraint of liberty sufficient to support an action of false
imprisonment . …for the second issue : whether the arrest and detention of the appellants were
caused by the respondent . in the present case the respondent went beyond the role of a mere
informer. In the first place he made a false complaint against the appellants to the two constables
when they arrived at Kwabeng. His own evidence on the point show that the complaint he made
was either false or recklessly made without caring whethere it be tue or false. He then followed it
up by goin g to Asante’s hosue to demand the arrest of the appellants and threatening the
constables with a report to their superior officer if they failed to satisfy his demands. In my view
the constables were obliged to act as they did. But after the constables had refused to arrest the
appellants and to take tehm to the police station, the responden was not satisfied and decided , as
recorded in exhibit B , to go to Anyinam and puruse his complainti. The respondent’s evidence
that he decided to go to Anyinam to report the constables because they had brought the
appellants to him when he had not asked them , the contabels , to do so, is too naïve to be
accepted.
CRABBE JSC: one important element in an arrest is an imprisonment or the total deprivation,
however brief, of the liberty of another without lawful excuse or justification. There need not be
an actual confinement….in my view there was arrest when the constable said to the second
appellant , “ you are arrested” and prevented him and other plaintiffs from leaving the house .
such words amount to an arrest if the person to whom they are addressed submits….the next
question is whether the arrest was malicious or unlawful. An arrest is malicious in the sense that
it is made without reasonbable or probable cause . if it was lawful then the apppellants cannot
complain of the manner in which their arrest was effected. There can be no doubt that when the
the police ounstables took the appellants into custody in the house of the second appellant they
had no reasonable grounds for suspecting that the appellants had committed any offence.
When the defendants rushed into the house of second appellant the police constables requested
him to state a charge against the appellants but he gave no heed and left the house . all this time
and up to the time the appellants were taken to the Ahenfie the police constables had not told the
appellants the grounds for their arrest. a person who is arrested without a warrant is entitled to
know as soon as is reasonable practicable that he is being arrested and also the grounds for his
arrest. If the officer arresting fails to inform the suspect accordingly the arrest would be
unlawful, unless the arrested man is caught red-handed and the crime is patent to high heavens.
In the instant case the two constables could not have told the appellants the crime for which the y
were being arrested because the police officers themselves did not know . an arrest can be
justified only on the ground made known to the suspect at the time of the arrest. …to my mind
this was clearly an unlawful , for a police officer is not entitled to take a person into custody and
then late on go about collecting evidence to justify his action
WHAT ABOUT THE SITUATION WHERE A OFFERS THE POLICE MERE ASSITANCE
TO DO THEIR WORK
Nkrumah v. Foli: it was held that to accompany the police to pint out the plaintiff to them is not
instigation.
.

So where a complainant gives information to a police officer and the officer acts according to its
own judgment and makes an arrest , the complainant incurs no liability for false imprisonment.
But where the complainant does not merely give information but directs the officer to effect the
arrest , the officer in that case is considered as the servant of the complainant and the
complainant will be liable for false imprisonment . Narwu v. Armah
This situation will not change if the information given by A to the police is to his knowledge
false . musa v. Limo-Wulana. It shows where the information given by A to he police is to his
knowledge false an action in false imprisonment will lie
YAW V. BEKOE: the plaintiffs claimed damages for unlawful arrest and imprisonment. The
evidence showed that the second defendant maliciously and falsely pointed out the plaintiffs to
the police as having taken part in a fight. None of the plaintiffs had taken part in any fight but
the consequence of the second defendant’s action the plaintiffs were arrested by the police and
imprisoned for several hours. The divisional court held that although the second defendant did
not authorize or direct the police to arrest or imprison the plaintiffs , it was in consequence of his
action that the plaintiffs were wrongfully arrested and imprisoned and that he was therefore
liable to the plaintiffs in damages.
Aitken J: true, he does not authorize or direct the constable to arrest them; also that he makes no
charge against them on which it became the duty of the constable to arrest them without a
warant; , yet again , that the constable acted according to his own judgment (such as it was ) .
nevertheless, from the common-sense point of view , it seems to me that a man who deliberately
gives false information about another with intent to get him into trouble , and thereby succeeds in
getting him arrested and imprisoned , should not be protected by the law in cases where that
arrest and imprisonment are wholly wrongful; the law is surely not such an ass as that !.

WHAT IF THE ACCUSED BELIEVED THE FALSE INFORMATION TO BE TRUE

ETUK AND ANOTHER V. KUSI: PER APALOO J (AS HE THEN WAS ) : “ The real
question which calls for determination is whether the defendant is liable to the plaintiffs for their
arrest and imprisonment which without doubt was done by the police. The police were
ministerial officers . had no warrant for the arrest of the plaintiffs and were very clearly not
acting under the authority of any court. The well established rule of law is that if the m act under
the direction or authorization of the defendant he is liable, but if the latter merely gave
information and the police in their judgment. arrest and detain the plaintiff the defendant is not
liable. Although I am inclined on the evidence to think that defendant is rather given to making
reckless charges of theft, I am not able to find any evidence of malice on his part on the facts of
this case . all that he seems to have done was to give the police a factual account of what he
believed took place. He may have been mistaken as to his belief about leaving the money in the
counter . at the tail end of his report he expressed strong of complicity in the theft against the
fist plaintiff but on the whole the defendant did no more than express his opinion. He had no
control o ver the police who said what they did upon receiving the defendant’s complaint was
routine and in exercise of their discretion. I do no think that he fact that the defendant drove
both the police and the plaintiffs in his care to the police station and technically imprisoned both
plaintiffs in his car alters the view I take of this case . at best he acted reasonably and as agent
for the police. In these circumstances I must hold and I do so with regret that the defendant is not
liable to the plaintiffs for unlawful arrest and false imprisonment .
Is the law looking for intention to imprison or intention o do the adct leading to imprisonment ?
in v. Riddiford, it was held that the relevant consideration was intention to do the act which
causes or results in he imprisonment
Can false imprisonment be committed negligently: Sayers case suggests only intentionally.
THERE IS NO FALSE IMPRISONMENT WHERE A JUDICIAL DISCRETION IS
INMOPOSED BETWEEN THE ACT OF THE DEFENDANT AND THE INJURY TO THE
PLAINTIFF
In a judgement given by the Full Court, the plaintiffs were ordered to pay costs . they applied for
leave to appeal to the Privy Council , but before that leave had been granted, they were
imprisoned on a ca.sa., for failing to pay the costs awarded by the Full Court. Subsequently on
motion brought before the Full Court , they obtained their release. They now sued the execution
creditors for damages for false imprisonment. The court held that the Court which issued the
ca.sa. had jurisdiction to do so , and that this interposition of a judicial officer excused the
defendants . it was also held that , in the circumstances, the defendants had reasonable and
probable cause for their action.

SALMONDS ON THE LAW OF TORTS(15TH ED) P.165:

An action for false imprisonment will lie against any person who authorizes or directs the
unlawful arrest or detention of the plaintiff by a merely ministerial officer of the law. He who
sets in motion a merely ministerial officer , such as a constable , has no protection similar to that
which is extended to the litigant in a court of Justice. If he makes the ministerial officer his agent
he is responsible for an y arrest or detention so procured or authorized. It is necessary to prove
actual direction or authorization; more information given to such an officer on which he acts at
his own discretion is no ground for liability
The rule in Wilkinson v. downtown
The rule created an action on the case for intentional infliction of physical harm by indirect
means.-per Wright J in Janvier v. Sweeney : it state that any act done willfully, calculated to
cause and actually causing physical harm to another is an actionable wrong.
ELEMENTS
A deliberate or willful act or misrepresentation
Calculated to cause harm to the plaintiff;
Actually causing harm to the plaintiff
FACTS: the defendant in the execution of a practical joke , falsely told plaintiff that her
husband had asked him to tell that he had been injured in an accident with both legs broken and
that she was to go at once in a cab to get him. she suffered a nervous shock, vomiting and other
physical consequences. she spent a large sum on medical expenses as a result . the consequences
were not in any way the result of previous ill-health; for she was in ordinary state of health and
mind. It was held that an action would lie to recover the expenses on medical treatment. Per
Wright J:
“ the defendant has as i assume for the moment , willfully done an act calculated to cause
physical harm to the plaintiff-that is to say, to infringe her legal right to personal safety , and has
thereby in fact caused physical harm to her…. This willful injuria is in law malicious , although
no malice purpose to cause the harm which was caused nor an motive of spite is imputed to the
defendant… one question is whether the defendant’s act was so plainly calculated to produce
some effect of the kind which was produced , that an intention to produce it ought to be imputed
to the defendant regard being had to the fact that the effect was produced on a person proved to
be in an ordinary state of health and mind. I think that it was .it is difficult to imagine that such a
statement , made suddenly and with apparent seriousness, could fail to produce grave effects
under the circumstances upon ay but an exceptionally indifferent person and therefore an
intention to produce such an effect must be imputed, and it is no answer in law to say that more
harm was done than was anticipated for that is commonly the case with all wrongs..... suppose
that a person is in a precarious and dangerous condition and another person falsely tells him that
his physician said that he has but a day to live . in such a case if death ensued from the shock
caused by the false statement , I cannot doubt that the case might be one of criminal homicide ;
or that if a seiorus aggravation of illness ensued , damages might be recovered.”
On the facts there was no precedent before 1875. The plaintiff could not have brought an action
for trespass which lay only for the direct psycial infliction of harm or threat of it. in this case,
the plaintiff had been physically injured. But only as aresult of her mental shock following upon
her belief in the words spoken. She could not have sued for this mental suffering in the tort of
deceit because of the absence of fraud and reliance. Here she was claiming for damages not for
reliance but for her mere belief in the truth of what thedefendant said and the effect that beief
had on her mind.
Wright J laid down the principle that it is a tort to do a willful act which is calculated to cause
and does infect cause physical harm to another . this tort , being derived from the old action on
the case is committed even where the plaintiff’s injury is the indirect consequence of the
defendant’s act. Again , being case , proof of damage is of the essence of the tort. The tort is thus
distinguished form assault and battery in that assault and battery can only be committed by direct
acts and moreover are actionable per se . the tort plays a useful role in that it covers that residual
category of physical injuries intentionally inflicted but which are not caught in the net of
trespass because the requirement of directness is not complied with.
The rule was also applied in other cases :
Janvier v. Sweeney : the plaintiff was a maid servant ; the defendants were detectives; they
wanted to read certain letters of the plaintiff’s mistress. They represented to her that she was
suspected of collaborating with the Germans and if she did not bring out the letters they would
report her boy-friend to the authorities as a traitor and have her deported. The plaintiff fell ill and
had nervous shock . The court held that the act of the defendant was willful and aimed at causing
harm under the rule in wilkinson and downtown and so the plaintiff was held entitled to recover.
Burnett v. George : the plaintiff was subjected to harassment by unwelcome phone calls. The rule
in Willkinson v. Downton was thought to be applicable but he plaintiff failed because she could
not prove any damage , i.e. impairment to her health.
Khorasandjian v. Bush: this was a case of harassment by phone calls . the plaintiff succeeded on
the Wilkinson v Downton prinicples because of the risk that the cumulative effect of continued
and unrestrained phone calls would cause physical or psychiatric illness.
In the recent case of D v. National Society for the Prevention of Cruelty to Children, in which
Lord Denning was unwilling to extent the principle , the defendants had information that the
plaintiff was maltreating her child. They sent an officer to investigate . the information was false
and the plaintiff was severely shocked by the experience. This issue was whether the defendants
were bound to disclose the identity of their informant; but disclosure here depended on whethere
there eas a claim against he defenadtns on thefacs in the fist instance. In the end , it was decided
that disclosure mustbe refused on pulic interest grounds and therefore there was no claim against
the defendants.

INTETNTIONAL INTERFERANCE WITH PROPERTY

TRESPASS TO LAND(TRESPASS QUARE CLAUSUM FREGIT-DIRECT INTERFERENCE
WITH LAND IN
POSSESSION OF ANOTHER)
This is the wrong redressable at the common law by the old writ of trespass which deals with
unjustifiable interference with land in the possession of another. In his commentaries ,
Blackstone describes the tort as “ every unwarrantable entry on another’s soil, the law entitles a
trespass by breaking the close; the words of the writ of trespass commanding the defendant to
show cause quare clausum quaerentis fregit. For every man’s land is in the eye of the law,
enclosed and set apart from his neighbor’s ; and that , either by a visible and material fence, as
one field is divided from another by a hedge; or an ideal invisible boundary, existing only in the
contemplation of the law, as when one man’s land adjoins to another’s in the same field.”
The tort protects the interest of the plaintiff in having his land free form physical intrusion. It
does not protect ownership as such but possession-power to use the land and to exclude others.
Thus occupation and control of the land as well as the power to exclude others.; however since
often the owner is in possession, the purpose of many trespass suits is not only to recover
damage but also to settle dispute as to rights over lands. from this the tort can be aisd to sever
three distinct purposes: provides damages in the law ; settles title to land ; provides protection
againt the abuse of powers by officialdom.
Kumado defines the tort as : intentionally or negligenty entering or remaining on or directly
causing any physical matter to come into contact with land in the possession of another.-thus
it is a trespass to enter or remain on the land of another intentionally or negligentlay or to acause
anything which has mass to come into direct contact with land in the poassession of another , eg.
Throwing stones onto someone’s land.
Salmonds on Torts (16th edn., p.38): the wrong of trespass to land (trespass quare clausum fregit)
consists in the act of (1) entering upon land in the possession of the plaintiff, or (2) remaining
upon such land, or (3) placing or projecting any material object upon it-in each case without a
lawful justification.
ELEMENTS
THE ACT COMPLAINED OF MUST BE DIRECT : the invasion of the claimant’s land must be
the direct act of the defendant . eg. Crossing the land, feeling over the land , shooting over the
land. Pickering v. Rudd :
The house of the defendant adjoined to the garden of the plaintiff, which was behind his house
and a Virginian creeper which grew in the plaintiff’s garden, spread itself over the side of the
side of the defendnat’s house,.the defendant a hair cutter wishsed to hag up a show – board on
that side of his house, which was overspread by the Virginian creeper, managed by means of
ropes and scaffolding suspended over the garden without touching the surface of the plaintiff’s
premeisses, to cut away such a portion of the creeper as was sufficient to admit the show-board,
and affix the board to his own house, projecting from three to four inches from the surface of the
wall. It was conteded for the paintiff that the putting up of the board which projected three to
four inches from the defendant’s wall, over the garden of the plaintiff, was of itself a trespass,
and this had not been justified. The defendant however justified the cutting by the fact of its
projection into his premises. For the plaintiff, more harm had been done to the defendant than
was necessary.
HOLDING …LORD ELENBOROUGH: it is a trespass to fire gun unto someon’s land. It would
not be a trespass to pass over a man’s land with a balloon. In summing up to the jury , he told the
m that the question was …whether in removing the mischief the defendants had done any
damage to the tree which might have bee avoided. Verdict for the defendant .
THE TORT DEPEND ON AN AFFIRMATIVE/ POSITIVE ACT : An omission leading to
interference e with another’s land , does not constitute a trespass, although it may provide the
foundation for an action n in nuisance. Reynolds v. clark : the occupier of a house who has a
right to have the rain fall form the eaves of it upon another mans land cannot put up spouts to
collect that rain and discharge it upon such land in a body. Trespass will not lie but case where a
nuisance is occasioned by and act in other respects lawful. Eg. A fells a tree which falls into B’s
landtrespass. ; A discovers a tree on his land eaten by termites and ready to fall but does nothing
about it . on a windy day, the wind blows down the tree and it falls into B’s land-no trespass this
is because this is not a positive act by A and not being immediate or direct .
THERE MUST BE PHYSICAL INTERFERENCE WITH THE LAND: the interference can be
by a person or by an object ./lavender v. Bett: the defendant let to the plaintiff a flat consisting
of the first and second floors of a dwelling-house on a weekly tenancy basis. The plaintiff was
making irregular payment of the rent. The rent fell into arrears. After about two years, he served
a notice to quit on the plaintiff who ignored the notice and continued in possession. The
defendant gave another quit notice which the plaintiff again refused. Later on , the defendant ,
without making an application as he was required by statute, i.e. the Increase of Rent and
Mortgage Interest Restrictions Acts , 1920-1933 to a court for possession , because the plaintiff
had become a statutory tenant , obtained admission to the flat on the pretext of going to have a
private discussion with the plaintiff’s wife . he gave instruction to men he had brought with him
to remove all the doors and windows with the result hat the plaintiff could live in it only at
considerable discomfort and danger to his health. The defendant had asked police to be present
while the windows and doors were being removed. The plaintiff sued for trespass and breached
of the covenant for quiet enjoyment . lord Atkinson held that he must succeed and punitive
damages would be awarded .
This case should be contrasted with Perera v. Vandiyar : the plaintiff was a statutory tenant . to
evict him, the landlord cut off the supply of gas and electricity to the flat from his end of the
premises and the tenant was forced to leave. After a week, the supply was reconnected. The
tenant then sued the landlord for breach of the implied covenant for quiet enjoyment, and an
inaction restraining the landlord from further breaches of hat covenant . he also added a claim
for damages for eviction . judgment was give nto the plaintiff and the landlord papealded on the
question of damages. Held allowing the appeal that there was no tort of eviction . that any
evidence of eviction on the facts amounted only to a breach of contract. There was no
interference with any part of the premises and therefore no action in trespass , per Sir Raymond
Everhsed M.R, Birklett L.J, Romer C.J

WHERE A PERSON ENTERS SOMEONE’S LAND IWTHHTE LEAVE AND

LICENCE OF THE
LANDLORD, THEN THE LICENSEE BECOMES A TRESPASSER , IF HE REFUSES TO
LEAVE AFTE THE LICENCE HAS BEEN REVOKED.-I.E he overstays provided that he has
been given a reasonable time to leave the premises. Hurst v. Picture Theatres Ltd : the plaintiff
had paid six pence to watch a film at the defendant’s cinema theatre. After the performance had
begun, the plaintiff who was suspected by management to have entered without paying was
asked to leave but he
refused insisting that he had a ticket. Eventually he was forced out . he brought an action for
assault and false imprisonment. The defendants justified their conduct inter alia on the grounds
that they were entitled , without assigning any reason , to ask the plaintiff to leave the theatre and
if he refused , to remove him forcibly . judgment was give to the plaintiff and the defendants
appealed . the appeal was dismissed and the appellate court stated thus :
the purchaser of a ticket for a seat at a theatre or other similar entertainment has a right to stay
and witness the whole performance provided he behaves properly and complied with the rules of
management. The license granted him by the sale of a ticket includes a contract not to revoke the
license arbitrarily during performance.”…therefore assault was committed on him. Cowell v.
rosehill Race Course Co. Ltd: The plaintiff – appellant sued the defendant – respondent for
damages for assault . the defendant replied by saying that the plaintiff was trespassing on his
land and what he alleged to be assault was the reasonable force he had used to remove him from
the land . the plaintiff had paid four shillings to watch a race meeting being held by the defendant
. in the course of the meeting , the defendants asked the plaintiff to leave and upon his refusal ,
forcibly removed him from the course. The plaintiff alleged further that he had acquired a right
ot be there which would to be prematurely revoked , and that the purported revocation was
ineffectual . it was held (Evatt J dissenting) that no action for assault would lie, reasonable force
having been used for the removal. This is because the plaintiff merely had contractual rights
which was revocable ad not a proprietary interest in the land. If the right was unjustifiably
interfered with his proper course would be an action for breach of a contract.
So if you are on someone’s land with his permission , then you commit no trespass you become a
trespasser only if he revokes your license and you still remain there .

THE DEFENDANT NEED NOT ENTER THE LAND PHYSICALLY BUT BY FORCING
OBJECTS TO GET ONTO THE LAND OF A OR BY CAUSING SOME FOREIGN
MATTER( ANYTIN WITH SIZE OR MASS
SUCH AS GAS, FLAME OR BEAMS FROM TORCHLIGHT ) TO ENTER OR COME INTO
PHYSCIAL
COTNACT WITH ANOTHER’S LAND , HE COMMITTS A TRESPASS…..PICKERING V.
RUDD
The act complained of as trespass must be the voluntary act of the defendant . here it is
immaterial whether A was aware that he was trespassing. But if through the action of others the
defendant trespassed on the land, then it is the others who are liable and not A. Smith v. Stone :
smith brought an action of trespass against stone,. The defendant pleads that he was carried upon
the land of the plaintiff by force and violence of others and was not there voluntarily, which is
the same trespass for which the plaintiff brings his action. The plaintiff demurs to this plea
Rolle J : it is the trespass of the party that carried the defendant upon the land , and not the
respass of he defendant as he tha drives my cattle into another’s man’s land is the trespasser
agasint him and not I who am owner of the cattle.
Gilbert v. stone : gilbert brought an action of trespasse quare clausum fregit, and taking of a
gelding against stone. The defendant pleads tat he for fear of his life, and wounding of twelve
armed men, who threatened to kill him if he did not the fact , went into the house of the plaintiff,
and took the gelding . the plaintiff demurred to this plea.
Roll Justice : this is no plea to justifie the defendant ; for I may not do a trespasse to one for fear
of threatnings of another , for by this means the party injured shall have no satisfaction, for he
cannot have it of htep arty threatened. Therefore let the platiniff have his judgement .
Involuntary acts must be distinguished from honest mistake. Mistake is no defence in trespass. If
you cut your neighbor’s grass in bona fide belief that you are cutting your own, it is nonehelss
trespass. Here it does not matter whether the mistake is one of law or of fact provided the
physical act of entery was voluntary.
Basely v.Clarkson , : the defendant mowing grass on his own land, mistakenly , because the
boundary between his land and the plaitniff’s was ill-defined , mowed the plaitniff’s land and
took the grass away . he paid the plaintiff two shillings as sufficient amends when the atio nwas
instituted agasint him . it was held that this was trespass because the act appeared volunatary
and his intention and knowledge aer not traversable, i.e. canot be known.

Asin all trespasses the plaintiff must prove that the defendant acted negligently or intentionally
and the tort will succeed without the necessity of proving damage.

CAPACITY TO SUE
Trespass to land is actionable at the suit of the person in possession of the land at the time when
the trespass was committed. Possession entails inter alia the occupation or physical control of
the land. The degree of possession may vary form case to case and the type of possession will
also vary with the type of land. In the case of land for instance possession may be evidenced by
occupation ,or if unoccupied , by having the key or other means of entry. For instance in Wuta
Ofei v . Danquah : the plaintiff acquired a land which he did not immediately occupy but put
pillars on. The defendant built on it. it was held per Lord Guest (P.C) to be trespass. The
presence of the pillars was taken to evidence possession.
Kumado gives examples of acts amounting to possession:
Building a wall around it
Shooting over it
Taking grass from it
Cultivating or using it for pasture; and
Having the key to the house
Proof of ownership is prima facie proof of possession. So is occupation. The rule as applied in
Mensah v. Peniana is “Mellior est conditio posidentis ubi neuter ius habet”-where both plaintiff
and defendant are trespassers, the defendant will prevail.
In Owiredu v. Mim Timber : Ollenu J observed that it was a settled law that a person in
possession of land, though himself a trespasser , is entitled to maintain an action for trespass
against any person who disturbs his said possession except the person in whom title is to the
land is vested or anyone claiming in the right of the true owner.

Nunekpeku v. Ametepe : the defendant pleaded that he was in possession . the supreme court
therefore held that the onus was on the plaintiff to prove that he was in possession at the time
defendant entered upon the land and disposed him of it.
The mere use of land without the exclusive right of possession cannot support an action in
trespass to land. HILL V. TUPPER : An incorporated canal company by deed , granted to the
plaintiff the sole and exclusive right or liberty of putting or using pleasure boats for hiere on their
canal . he borught an action against the defendant for setting up a rival cocern on the canal. It
was held that the grant did not create such an estate or interest in the plaintiff as to enable him to
maintain an action in his own name against a person who disturbed this right by putting and
using pleasure boats for hire on the canal. Chief Baron Pollock was of the view that the grant
merely operated as a licence or covenant on the part of the grantors and is bidnign on them , as
between themselves and the plaintiff . but it gives him no right of action in his own name for nay
infringement of the supposed exclusive right . if he ha been disturbed, he must obtain permission
from the canal company, to sue in their name.
Mere occupation of a premises is also not sufficient to support an action in trespass. Allan v.
Liverpool Overseers.
A servant who , for better execution of his duties, is given occupation of premesis cannot
mainatain an action for trespass to the premesis, in his own name. white v. bayley : the plaintiff
was employed by the trustees of a society and paid 75 pounds a year for managing and living on
their premises. The agreement was terminable after six months notice. The trustees gave notice
to quirt and took possession of the premises. The plaintiff forcibly re-entered . in an action by
the plaintiff he was non-suited and the trustees obtained injunction compelling the plaintiff to
give up possession. Byles J in his judgement staetd : the first count of the declaration complains
of trespass to land. That clearly does not lie unless the plaintiff has some estate in thealnd . the
platiff had the use but not the occupation of the premises.” Byles J pointed out by way of
explanation that if the employee were held to be vested with occupancy , then the relationship of
master and ervant or principal and agent would not hold , since if the servant or agent has been
guilty of misconduct and his appointment is terminated, theservant might set his mastr at
defiance , and though the master be right in putting an end to the master – servant relationship ,
the servant might insiste upon holding on until the expiry of a notice to quit.
SUBJECT MATTER OF THE TRESPASS
THE GENERAL RULE IS THAT “ CUJUS EST SOLUM EJUS EST USQUE AD COELUM
ET AD INFEROS-
WHOSOEVER HAS THE SOIL ALSO OWNS EVERYTHING UP TO HE HEAVENS
ABOVE AND DOWN TO
THE CENTRE BENEATH EARTH.. THE subject matter beign land can be divided into surface
soil sub soil and the ari space for purposes of trespass to ladn.
TRESPASS TO THE SURFACE.
Any kind of direct interference with the sureface is a trespass. Harrison v. Duke of Rutland: the
defendant owed the land adjoinging the highway and the soil of the higihway. The plaintiff
went on the high way expressly to interfere with his game by driving away the grouse to beshot.
He was asked to stop and when he persisted , theservants of the defdnatn held him down until it
wsas no longer necessary. He brought an action for assault and false imprisonment . the
defendant counter-claimed that the plaintiff was a trespassr. Judgment was given to the
plaintiff . on appeal by both the plaintiff and the defendant , the plaintiff on the sufficiency of
amount paid and the defendant on the trespasssi ssue , it was held hat since the plaintiff was on
the highway for the prupose of passing or repassing along it , but solely for the purpose of
interfering with the defendant’s enjoyment of his right of shooting over his land, he was
trespassing. So the jdugement given in his favour was set aside.

Hickman v. Maisey, the plaintiff was the owner of a land crossed by a highway. He let out part
to a trainer of horses for the training and trial of race horses. One could watch the training from
the highway. The defendant who owned a publication nwhic gave account of the performance of
reace horses in training used to stand on the highway to spy on the training . the trainer objected
to this and the plaintiff gave the defnadtn notice to discontinue his practice. But he refused. On
this occasion he walked back and forth on a protion of the highways the soil of which was vested
in the plaintiff for about one and a half hours with glasses and took notes. The plaintiff sued him
for trespass and injunction to restrain him. the defendant justifies the acts complained of on the
ground that the locus in quo was a highway , and he was lawfully using it as such for the purpose
f passing and repassing and therefore not trespass.. The question therefore was whethere the use
of het highway in the manner in which the defendant used it was in truth a use of it for the
purpose for which a highway is dedicated to the public. judgment was given for the plaintiff .
the defendant then brought an application for a new trial . it was held that he defendant had
exceeded the ordinary and reasonable user of the highway and he was therefore guilty of
trespass. His application was accordingly dismissed.  TRESPASS TO SUB SOIL
This is mostly where mineral rights have been granted.
AIRSPACE
THE LAW gives a reasonable airspace above the land and it is a trespass to violate the allwod
airspace above the ground. Lord Ellengbourough remarked in Pickering v. Rudd that it would
nto be a trespass to pass over a person’s ladn in a balloon. And again in this case it was also held
that there was no trespass by the projection fo the board into the airspace above the plaintiff’s
land. This is inconsistent with the decision in kelsen v. imperial Tobacco co. Ltd: the
defendnats had erected three metal signs advertising their wares. With the permission of the
plaitniff’s landlords , they replaced them with a new sign which encroached slightly on the
airspace above the plaintiff’s roof. The plaintiff knew all about this because he allowed the
defendant’s maintainace men to go on his roof through the skylight which he otherwise never
used. Five years later , after certain business difficulties with het defendnats , the plaintiff
demanded the removal of the sign and when the defenants refuse, he sued them for an injuction
and succeeded. McNair J held that this was not a mere nuisance but a trespass and therefore
injunction will lie.
Ellis v. Loftun Iron Co. : the defendant’s horse kicked and bit the plaintiff’s mare through the
fence and injured it . it was held that his was trespass b the horse for which the defendant was
liable. The horse’s muoutn and feet protruded through the ence over the plaintiff’s ladn-so it
amounted to trespass, even though the trespass was transient. Per Coleridge C.J : “ it is clear
that , in determing the question of trespass or no trespass, the court cannot measure the amount
of the alleged trespass; if the defendant place a part of his foot on the plaintiff’s land unlawfully ,
it is in law as much a trespass as if he had walked half a mile on it” See also doughterty v. Stepp.
HOWEVER : BY virtue of section 29 of the Ghana Civil Aviation Act, 2004 (Act 678), no
action can lie in respect of trespass or nuisance by reason of transient harmless incursion of an
airspace by an aircraft.
So in Bernstein of Leigh v. Skyviews General Ltd : Griffiths J held that the right of the owner of
land in the airspace above his land is restricted to such height as is necessary for the ordinary use
and enjoyment of his land and the sructures on it.

TRESPASS TO CHATTELS
The tort is committed by intentionally or negligently interfering with the chattle in the possession
of another.
DIRECT ACT
The interference must be direct.-forson v. Koens The interference may be an act which brings the
plaintiff’s body into contact with the chattel.
In forson v. Koens : the plaintiff was a private legal practitioner . He agreed to purchase the first
defendant’s Mercedes Benz car at an agreed price of 11400 cedis. He took possession of the car
after making payment of 7000 . The plaintiff used the car for his professional work as well as
social activities . The first defendant claiming that she had not received the outstanding balance
authorized the second defendant a senior army officer then in his uniform to seize the car. The
seizure was witnessed by a lot of people leading to embarrassment to the plaintiff. He resorted to
taxis to enable him carry on his work and other activities.
Edusei J held that : the seizure of the plaintiff’s car by the second defendant on the authority of
the first defendant was clearly a tort of trespass which simply is an intentional interference with a
chattel in the possession of another . The interference must of course be direct.

It provides a wider protection as compared to conversion because a mere interference is

sufficient and there will be no need to prove damage. You do not also need to prove a denial of
title also. Because of the requirement of directness, it is narrower than conversion. Thus the
defendant’s act must be the act which directly causes the trespass. So for instance it is not a
trespass for the defendant to put poison in the plaintiff’s food and the plaintiff consumes. De
bonis is now limited to intentional interference with chattel.

IT IS ACTIONABLE PER SE
There need not be any prove of actual damage. Any unauthorized touching or moving of a
chattel is actionable at the suit of the possessor , even though no damage ensues
William Leitch v. Leydon : the appellants were manufacturers of mineral water. They sold these
beverages to customers in bottles embossed with their name and took steps to ensure that the
property in the bottles remained with them. The respondent dealt in aerated waters. In addition to
the bottled ones, he had installed in his shop a soda fountain. He made no inquiry of his
customers as their ownership of the receptacles provided , and made no examination of the
receptacles beyond seeing that they were sufficiently clean to receive the drink. The appellants
brought the action for suspension and interdict against the respondent for the use of their bottles.
It was held that the respondent was under no duty to examine the bottles before filling them or
inquire into their history as there is no contractual relation between them ,and therefore the
appellants were not entitled to interdict. (a lot of statements were made to support the view that it
is actionable per se).-lord Blanesburgh remarked that the trespasser is not excused by inquiry
into the complainant’s title except to the extent that ignorance , after inquiry may be an
aggravation of the trespass is no constituent part of it. He stated that the appeal should be
dismissed and for the reason that the appellants have not established as against the respondent
any actionable wrong whatever. There has bee no case of trespass upon their goods proved
against him.

Fouldes v. Willouhby : the slightest touching of a chattel is a ctionable as t respassss. –the

defendant was the occupier or manager of a ferry by means of steam-boats . the plaintiff
embarked on board the defendant’s ferry – boat having with him two horses for the carriage of
which he had paid the usual fare .it was alleged that the plaintiff misconducted himself and
behaved improperly after he came on board the steam-boat , and when the defendant came on
board he told the plaintiff that he would not carry the horses over , and that he must take them on
shore. The plaintiff refused to do so and the defendant took the horses from the plaintiff who was
holding one of them by the brigle , and put them on shore on the landing slope. They were seen
at a hotel kept by the defnendants brother. The plaintiff remained on board the steam-boat and
was conveyed over the river to Liverpool. The next dayteh plaintiff sent to the hotel for the
horses but was informed that he had to pay for their keep and that if he refused, they would be
sold to pay the expense of it. the plainitiff then brought the present action. The horses were
subsequently sold by auction. For the defence , the plaintiff had misconducted himself and
behaved improperly on board and that the horses were sent on shore in order to get rid of the
plaintiff , by indicuing him to follow them. The learned judge told the jury that the defendant by
taking the horses form the platiniff and turning them out of the vessel, had been guilty of
conversion , unless they thought the plaintiff’s conduct had justified his removal from the steam-
bat, and he had refused to go without his horses; and tha if they thought the conversion was
proved , they might give the plaintiff damages for the full value of the horses. The jury found a
verdict for the plaintiff. The defendant appealed .
a wrongful l removal of a chattel even for a few yards amounts in law to a conversion. Lord
Abinger C.B.
if a man takes and rides another person’s horse without his consent, however short a distance, it
Is in law a conversion.
The horses were turned out of the boat by the defendant because the owner refued to take them
out and not with any view to appropriate them to his own use but to get rid of their owner. if a
The learned judge was wrong in telling the jury that the simple fact of putting these horses on
shore by the defendant amounted to a conversion of them to his own use. He should have added
to his direction , that it was for them to consider what was the intention of the defendant in doing
.

LATHAM C.J IN PENFOLD WINES CASE : a mere taking or asportation of a chattel may be a
trespass without the iinfliction of any material damge. The handling of a chattel without
authority is a trespass…unauthorized user of goods is a treapss; unauthorized acts of ridign a
horse , driving a motor car, using a bottler are all equally trespasses, evn though the horse may
be returned unharmed or car unwrecked or the bottle unbroken.”
Slater v. Swan, Everritt v. Martin, Kirk v. Gregory,-after the death of the plaintiff’s testator , the
female defendant who was the wife of the testator’s brother, immediately took out of an
unlocked drawer in the room where the testator died some diamond rings and jewelry belonging
to the testator and placed them with a watch of the testator’s in a box and put the box into a
cupboard in another room for safety. The box and cupboard were unlocked .the plaintiff on being
informed found the watch but the rings and jewelry were missing and had never been found.
The learned judge ruled that there was no eience of a conversion . on appeal, it was held that : to
constitue a trespass, there must be a wrongful taking ; her ethere was none such . to find and take
possession of lost goods is no trespass, as is shown by the action of trover , which was suit the
case of the defendant having come lawfully into possession of the plaintiff’s goods , and was
based on the fiction of his having and was based on the goods and was based on the ffictio nof
his having found them. The goods of a person lately deceased ae in a similar position.

THE RELATIONSHIP BETWEEN THE PERSON SUING THE CHATTEL INTERFERED

WITH
Primarily the tort protects possession and not ownership. An owner out of possession cannot
generally speaking sue. The rule is that the rule is that the defendant’s act must disturb the
plaintiff in his possession of the chattel.
The case in point is Ward v. Macauley : the platiniff was the landlord of a house which he let
ready furnished to Lord Montfort. In leveying execution agains Lord Montofort, the defendant,
sheriff of Middlesex, seized part of the furniture although he was told it belonged to the
platiniff. The platiniff brought an action for trespass against the defendant. At the trial, Lord
Kenyon , C.J. thought trespass could not lie and that perhaps Trover; however judgment was
given for the plaintiff for the value of the goods with liberty for the defendant to move to enter
nonsuit. He stated : the distinction between Trespass and Trover is well settled: the former is
founded on possession; the latter on property. Here plaintiff had no possession; his remedy was
by Trover founded on his proper in the goods taken…” so no trespass.
That to succeed the plaintiff must prove that he was in possession at the time of the interference.

HAMPS V. DARBY: the defendant was a farmer who on the crucial date , had a crop of
valuable peas on his farm. The plaintiff kept racing pigeons as a hobby. He released them daily
for exercise and they usually returned after 15 to 20 minutes. On the crucial day, he released nine
birds which sttled on and did serious damage to the defendant’s crops. After shouting
unsuccessfully to drive them away, the defendant took his gun and without first firing a warning
shot , shot at the pigeons killing 4 and injuring a fifth. The plaintiff brought an action in the
county court and the judge awarded him 200 pouds damages. The defendant appealed. The
appeal was dismissed per Greene M.R and Evershed LJ. The court held inter alia:
…the owner of tamed or reclaimed pigons continues to have property in and possession of his
birds after they have flown form his dove-cote, so long as the birds retain an animus revertendi
to his control.
No justification proved because the plaintiff did not establish that shooting them was the only
thing he could do. The onus was on him to justify the shooting.”

Mexican and the Winkfield.: an appeal from the order of a lower court presided over by Sir
Francis Jeune dismissing a motion made on behalf of the Postmaster-General. On April 5 1900
there occurred a collision between the steamship ,The Mexican and the Winkfield. Th eMexican
was sank as a resut of the collision. The owners of the Windkfield under a decree limiting
lliability to 32,514 17s pounds. 10d. paid that amount into court. The postmaster General on
behalf of himself and the postmasters – General of the Cape Colony and Natal claimed , inter
alia to recover from that sum the value of letters, parcels etc. I nhis custody as a bailee and lost
on board The Mexican. It was agreed by all the parties that the claim was one by a bailee who
was under no liability to his bailor for the loss in question the legal position which was settled
by Claridge’s case. On the authority of that case therefore the court dismissed the claim. On
appeal it was held by the Corut of Appeal (Colllins M.r., Stirling and Mathew L.JJ concurring)
that the bailee in possession can recover the value of goods , although he will have a perfect
defence to an action by the bailor for damages for the loss of the thing bailed in an action
against a stranger for loss of goods caused the stranger’s negligence; that is possession is good
against the stranger whatever the rights are between the bailor and the bailee.

There seems no requirement in trespass that the possession should be lawful. And so as against a
stranger , a thief of a chattel may bring an action of trespass to it.
Wilson v. Lombank Ltd. : the plaintiff bought a car form A who had no title to sell . apparently
the defendants had also bought the same car at one time. The plaintiff took the car to a garage for
repairs. A representative of the defendants took the car away when the repairs were finished .
and when they discovered it belonged to someone elese, delivered it to the ture owner. The
platiniff brought this action for damages for trespass claiming the full value he had paid as well
as the cost of the repairs. Judge Hinchcliffe said he was entitled to succeed because he had
possession though no title “because he had a right to immediate possession as well as
possession.”

WHERE YOU SELL GOODS UPON A JUDGMENT AS A JUDGMENT CREDITOR, YOU

HAVE TO PROVE THE JUDGMENT UPON AN ACTION FOR TRESPASS.
WHITE V. MORRIS : Robinson who had carried on business a draper became insolvenet. He
assigned all his household furniture and stock and stck in trade to trustees for the benefit of his
creditors. The trustees took possession and sold the goods to Robinson and one Story the latter
paying for thme partly in money and partly by bills. When the bills became due and Story could
not meet , them , the present plaintitiff , white agreed to lend Robinson and Story 120pounds
with the goods in question as security. The goods were accordingly a ssigned to White. By rthe
deed of assignment , Robinson and Story covenanted to pay White the 120 pounds on a given
day with interest and assigned to White all the goods in a certain shop and dwelling place ( in
respect of which this action was brought), to hod the goods and premises assigned until payment
of the money and with a power to White to sell upon default in payment. Morris , Gibson and
Wheatley who were manufacturers at Manchester were creditors of Robinson at the time of the
first assignment . they declined to concur in that assignment and after the trustees had sold the
property to Robinson and Story they sued Robinson in the Sunderland county court and obtained
judgment against him.
Taylor and Thompson exeuted this judgment and sold the goods . the only evidence of the
seizure and sale was , the production of the writ of mandate directed to tehm with the
indorsement of the igh bailiff.
In an action by the plaintiff for damages to the goods , ti was heldt hat “when goods are assigned
as security for an adavance of money , upon trust to permit the assignor to remain in possession
of them until default in payment at the time stipulated…the assignee has a sufficient possession
to enable him maintain trespass against a wrongdoer.” The judgment creditor in the
circumstnaces had to prove the judgment.
EXCEPTIONS TO THE RULE ON POSSESION
Trustees are allowed to sue for trespasss to chattels in the hands of beneficiearies
The title of personal representatives ( adminstrators and executors ) is treated by the law as
relating back to the tiem of death of the deceased wihc occurred before probate or letters of
administration.
In a bailment for a fixed term, the bailor has no possession. But in a bailment at will both bailor
and bailee can sue third parites although phsycially the goods interfered with are in the hands of
the Bailee. For baiment for a fixed term only bailee can sue. The bailee can sue for full value of
the chattel, although there is no legal duty on him to hadn over theat part of the damages that is
over and bove his interest, as was noted in The Winkfield.
The owner of a franachise which entitles him to goods can bring an action in trespass in respect
of interference with the goods before he has actually taken control of them
MEASURE OF DAMAGES
Where he is deprived completely, a plaintiff is entitled to recover full value of the chattel. A
plaintiff who is successful in an action for partial damage is entitled to actual damage i.e.
REQUISITE MENTAL REQUIREMENT
The law is that for trespass to goods , it must be shown that the interference was deliberately or
intentionally made. The plaintiff should bring an action in the tort of negligence if the defendant
acted negligently.
NATIONAL COAL BOARD V. EVANS: an electrical cable had been placed under the land of
a county council by the plaintiffs or their predecessors without the knowledge of the owners of
the land. The council contracted with the first defendants to excavate a trench on this land
handing to them a plan which did not show the cable. The first defendants sub-contracted with
the second defendant to excavate the trench ; and their driver in the course of doing so with a
mechanical excavator , damaged the cable. The plaitniffs brought an action in trespass against
both defendnts and obtained judgment. The defendntnas appealed . it was held by the Court of
Appeal (Cohen , Simpleton and Morris L.JJ) that the appeal must be allowed . there was no
liability in trespass since the act was involuntary and accidental . the defendants were utterly
blamesless. The injury was in the main, attributable to the plaitniffs or their predecessors who
had committed trespass by placing their cable under the land of the county council without their
knowledge or consent. not intentional form the above meant the driver did not deliberately
commit trespass othe cable.
Halaby v. Halaby : the plaintiff was an agent for the firm Halaby Brothers. In 1957 the West
African Court of Appeal ordered the partnership properties to be sold. The defendants went to
nandonm to carry out the sale. They found all the goods had been removed from the firm’s store.
Upon inquiry, they discovered the goods and a safe belonging to the firm in a store which the
plaintiff claimed to be his his. They sold the goods and took the safe to Kumasi where ite was
opened before the registrar. Apparently some of the goods sold belonged to the plaintiff. He
therefore brought an action for trespass and claimed value of the goods sold, 200 pounds in cahse
removed and general damages. The action nwas dismissd and the plaintiff appealed . it was held
tha the appeal should be dismissed. The treeespass complained of was involuntary and accidental
. the defenndt cannot be held liable for any damage as such damae was largely attributable to the
platniff’s own fraudulent act in removing the firm’s goods into his own store.
THE TORT OF CONVERSION
The tort is concerned with conduct which is an affront to a person’s property or title to chattel.
3 main ways A may deprive another of his chattel and thereby open himself to an action in law:
By wrongfully taking it : the possession of the tort feasor is wrongful ab initio
Wrongfully detaining it : he may acquire possession lawfully but retains it wrongfully
Wrongfully disposing of it: here it is lost to the actual owner

Originally three distinct forms of action were provided for redressing them
Trespass debones asportatis –for wrongfully taking it Detinue for wrongful detention 
Trover for wrongful disposing of it.
Trespass and detinue dates from the early beginnings of the law , and trover was added in the
(15th to 16th) century.
The modern tort law covers all three situations in respect of conversion but originally, it would
concerened with only the disposal of goods. Hence originally to convert goods meant to dispose
of them , either through consumption, destroying or selling them. HISTORICAL
DEVELOPMENT
Before trover was developed, interferences amounting to conversion were addressed by detinue.
This is because the defendant , in detaining the goods was not allowed to object to the action on
the ground that he had already dispose them off and therefore no longer detained them.
Since detinue was unsatisfactory because it permitted wager of the law () trover was developed
to solve this. So pleaders began to avoid all forms of action in which wager was allowed by the
law and developed other forms in which the plaintiff was allowed the benefit of a jury.
The declaration in trover varied slightly from detinue. The material difference was that in trover
the defendant was sued for wrongfully converting the chattel to his own use whilst in detinue
the allegation was for unjustly detaining it.
TWO KINDS OF DETINUE :
Detinue sur bailment : this was the appropriate remedy if the defendant got the property through
a bailment or contract between the parties or some – how lawfully(bailment);
Detinue sur trover : where the defendant had found the goods or come into possession of them in
a manner other than by contract with the owner(finding).
The allegations of bailment and finding were fictional , immaterial ad untraversable. The means
by which the defenatn obtained possession of the goods were immaterial. The only issues were :
Did the goods belong to the plaintiff?
Has the defendant unjustly detained them?
The action of trover ( later conversion) was molded upon that of detinue sur trover.
Three things were alleged by the plaintiff:
That he had possession of certain goods ut de bonis propriis
That he casually lost them and defendant found them
The defendant did not return them but wrongfully converted them to his own use.
Both trespass and trover were actions founded upon possession and for centuries they remained
alternative remedies for the wrongful taking or damage to chattels. But one major difference with
the measure of damages :
The theory of trespass was that the plaintiff remained owner with his possession merely
interrupted or interfered with so that when the chattel was tendered back to him he had to accept
it . his recovery was limited to damages to the chattel or to his possession, often considerably
less than the value.
With trover, the defendant by “converting” the chattel to his own use had appropriated the
plaitniff’s property for which he was required to compensate him. the plaintiff was therefore not
required to take back the chattel when tendered To him and he recovered damages , the full value
of the chattel at the time and place of conversion. Thus the defendant was forced to buy the
chattel through trover.
This difference was explained in Fouldes v. Willoughby:
An action in trover for two horses. The defendant was a manager of a ferry. The plaintiff
embarked upon the defendant’s ferry with two horses and paid the appropriate fare. When the
defendant came on board, he was told that the plaintiff had misbehaved on board; he therefore
told the plaintiff that he would not carry his horses and that he should take them off the boat. The
plaintiff refused to do this. The defendant then took the horses off the boat and put them
onshore and they were conveyed to a hotel by his brother. The plaintiff remained on board and
was conveyed to the other bank. Later the horses were sold to defray the cost of keeping them .
the plaintiff then brought this action for trover.
The learned judge in summing up, told the jury that the defendant by taking the horses from the
plaintiff and turning them out of the vessel , had been guilty of conversion unless they though
the plaintiff’s conduct justified his removal from the boat and he had refused to go without the
horses. The defendant appealed . it was held that this was a misdirection because , per Lord
Abinger C.B:
… a simple asportatino of a chattel , without any intention of making any further use of it ,
although it may be a sufficient foundation for an action of trespass , is not sufficient to establish
a conversion” The intention of the defendant should have been put to the jury. For if his object
was simply to induce the plaintiff to go on shore himself, then the defendant had not done
anything inconsistent with or adverse to the rights which the plaintiff had in the horses.
Baron Alderson explained the law in the following terms :
Any asportation of a chattel for the use of the defendant or a third person amounts to conversion;
for this simple reason, that it is an act inconsistent with the general right of dominion which the
owner of the chattel has in it who is entitled to the use of it all times and in all places. When
therefore a man takes that chattel , either for the use of himself or of another , it is a conversion.
S o if a man has possession of my chattel, and refuses to deliver it up, this is is an assertion of a
right inconsistent with my general dominion over it and the use which at all times and in all
places , I am entitled to make of it ; and consequently amounts to an act of conversion… but the
question here is , where a man does an act , the effect of which is not for a moment to interfere
with my dominion over the chattel, but , on the contrary , recognizing throughout my title to it ,
can such an act as that be said to amount to a conversion? I think it cannot.
Thus the action in trover failed because there was no intention on the part of the defendant to
interfere with the plaintiff’s right or dominion over the hroses.
WHAT IS CONVERSION
In the words of street or Baron Alderson in fouldes v. Willonghby, : an intentional interference
or dealing with the chattel which is seriously inconsistent with the possession or right to
immediate possession of another.
Quoting with approval Lord Nicholls’ discussion on the nature of the tort in Kuwaiti Airways
corporation v . Iraqi Airways at 1054, the Supreme coutt of Ghana (per Dr. Date-Bah JSC) at
p.846 in Youngdong Industires Lted . v. Roro Services reflectd on the tort thus ;
“…mere unauthorized retention of another’s goods is not conversion of the m. mere possession
of another’s goods without title is not necessarily in consistent with the rights of the owner. to
constitue conversion detention must be adverse to the owner , ecluding him form the goods . it
msut be accompanied ot keep the goods”
Similarlay , the Supreme court of Ghana stated in Standard Chartered Bank (Ghana) Lted v.
Nelson : …conversion then is the wrongful possession of goods or chattel belonging to another
and the use therefor by that other
Two elements with the interference :
Dealing with the chattel in a manner inconsistent with the right of the person entitled to it;
Exhibing an intention, by such dealing to deny another’s rights or to assert a right which is
adverse to or at variance with his .thus there should be a rival claim.

TITLE OR CAPACITY TO SUE

In conversion the plaintiff must have either actual possession or the right to immediate
possession at the time of the interference. If it is inconsistent with ownership or the plaintiff’s
title , the interest that the plaintiff must prove to succeed in short is actual ownership. Mere
possession without title has been held to be sufficient.
Armory v. Delamirie : the plaintiff, a chimney sweeper boy , found a jewel and carried it to the
defendant’s shop (the defendant was a goldsmith) to know what it was and delivered it to the
apprentice who , under the pretence of weighning it , took out the stones , and informed his
master that it was worth three and half pence. The master offered the money to the boy who
refused to take it and insisted on having the jewl back . the apprentice gave him back the socket
without the stones. He sued in trover . it was held (per Pratt C.J) as follows:
The finder of a jewel , though he does not by such finding acquire an absolute property or
ownership , yet he has such a property as will enable him to keep it against all but the rightful
owner, and can consequently bring an action in trover.
The action in law must be against the master who gives credit to his apprentice and is answerable
for his neglect.
The measure of damages should be assessed at the value of the jewel of the finaest water that
would fill the socket , i.e. the value of the best jewels.

An owner not in possession cannot maintain an action in trover –Gordon v. Harper . however an
owner out of possession is not entirely remediless. He can sue in an action on the case for
damage done to his reversionary interest with respect to sheo itnerreference which would make
the reveresionry interest valueless : penfold wines proprietary Ltd v. Elliot case. Mears v.
London & South Western Rly. Co. : the platiniff was the owner of a certain barge which he had
hired to a third person . the defendant’s servants negligently caused damage of a permantent
nature to it, while they were lifting a boiler form the barge. At the tiem the damage took place,
the barge hiring agreement was still subsisting . the defendants denied liabity. Held (per ERle
C.J. and Wiliams J) that trover will lie for a permanent injury done to a chattel while the owner’s
right to possession is suspended.
WHAT IS POSSESSION FOR THE PURPOSES OF THIS TORT?

Professor street defienes it in terms of an animus possidendi –an intention and a factum (power0 .
he explains that possession connotes the power to control and the intention to exclude all otherse
form the enjoyment of the chattel.
For purposes of passion the law distinguishes between chattels found in or attached to ladn and
those found on land.
South Staffordshire Water Co. v. Sharman : the plaitniffs employed the defendant together with
a number of other workmen to clean a pool for tehm. During the cleaning the defendant found
two gold rings at the bottom of the pool and refused to give them to the plaintiffs when requreid.
He gave the mto the police who fialing ot find the owner , returned them to him. the plaintiffs
sued the defendant in detinue for the recover of the rings . the ocntry court gave jdugement ofr
the defenadtn on the authority of Armory v. Delamirie. No contract existed between them
requiring the handing over of things found during the cleaning . the plaitniffs appealed. The
appeal was allowed (per Lord Russell of Killowen CJ, Wills J concurring’ . speaking for the
appellante court , Lord Russell , relying on Pollock & Wrights’s , Essay on Possession in the
Common Law at p. 41 quoted the law as follows : the possession of land carries with it in
general , by our law, possession of everything which is attached to or under that land , and , in
the absence of a better title elsewhere the right to possess it.
And it makes no difference that the possessor is not aware of the thing’s existence…it is free to
any one who requires a specific intention as part of a de facto possession to treat this as a
positive rule of law. but it seems preferably to say that the legal possession rests on a real de
facto possession constituted by the occupier’s general power and intent to exclude unauthroitsed
interference …where a person has possession of a house or land with a manifest intention to
exercise control over it and the things on which may be upon or in it then if something is
found on that land, whether by an employee of the owner or a stranger , the presumption is that
the possession of that thing is in the owner of the “locus in quo”
Elwes v. Brigg Gas Co. : the platiiff demised to the defendants for 99 years a piece of alnd in
Brigg. The defendant company while excavating the land prior to the erection of a gasholder ,
discovered , embedded in the clay about six feet below the surface a prehistoric boat ( aobut
2000 years old). The plaintiff asked for the delivery to him of the boate and the defendant
declined, asserting ha the boat belonged to them . the platiniff sued. It was held that the plaintiff
had a lawful possession of the boat, good against all the world and therefore the property in the
boat. It was immaterial that he as unaware of the existence of the boat. The license to remove
and dispose extended to the clay and ordinary soil likely tobe found in pursuing the license to
excavate but did not extent to what was unknown and not contemplated and therefore did not
comprise the boat.
London Corporation v. Appleyard : the plaintiffs freeholders of a building site, had leased it to A
who was financed by B. A clause in the agreement required the handing over of “every relic or
article of antiquity, rarity or value to the platiniffs. A wrote to B confirming that they held the
property in trust for B. B enreed into a building conract with C for the construction fo a new
building. Two workmen of C, while working on the site , found, in the cellar , an old wall safe
built into the wall . inside the safe was a wooden box containg bank notew issued in 1943 or
1944 to the value of 5,728 pounds. The true owners were never found. On the issue of who was
entitled to the bank notes in the absence of the true owner, the court held that the corporation had
an equitable titel to the notes. This was based on clause . This conclusion was reached by the
court on the ground that :
The safe beign built into the wall formed part of the demises premises and so the safe and its
contents belonged either to A or B, one or other of whom was in possession of the premises and
thsu had a better titel than the finders.
The bank notes were articles of value within the clause by which the corporation had reserved
such things to themselves
Possession was in yorkwin ltd either because the financed it or ; because of the etter they were
written by venture ltd.

These three cases state clearly the principle that the occupier or owner of a land to which things
are attached has a right to them when found. But the right of the true owner will always prevail;
that is the true owner of a chattel found on land has a title superior to that of anybody else.