SHOULD THE ELEMENT OF CONSCIOUSNESS OF CONFINEMENT BE A REQUISITE OF THE TORT OF FALSE IMPRISONMENT ? By Comfort Achiaamaa Antwi


In this article, I would put forward my views on the overbearing issue of whether or not a victim of unlawful imprisonment must be cognizant of the restraint, as a pre- requisite for suing under the tort of false imprisonment. This piece will then advocate for the adoption of the approach that better secures the civil liberties of persons ecumenically.

The right to personal liberty is heavily protected under the Constitution of the fourth Republic of Ghana, 1992. The tort of false imprisonment occurs where an individual has been confined and his liberties restricted without justification, and that the party had no reasonable means of escape. In Clerk and Lindsell on Torts (12th ed.), the law is stated as follows, “A false imprisonment is complete deprivation of liberty for any time, however short, without lawful cause.” The law of tort in this regard seeks to protect the individual’s interest in freedom from physical restraint. In the case of Warner v. Riddiford, it was unequivocally established that a person need not be confined within the four corners of a place to be deemed to be imprisoned: that there was total confinement leaving no reasonable means of escape sufficed the victim to bring an action for false imprisonment.

A much-debated issue concerning the tort of false imprisonment is whether knowledge of confinement is an essential ingredient of the tort.

Some authors have asserted that the tort protects the mental interest and subsequently the plaintiff must have known of the act causing his confinement, at the time that the defendant committed this act. This school of thought therefore suggests that an individual who claims to have been falsely imprisoned, should have full knowledge of the detention or restraint as a sine qua non to his right to bring a claim under the tort of false imprisonment.

On the other hand, it can be argued that, any confinement of an individual, whether or not he is aware of the confinement is an infringement of that individual’s civil liberty. According to this view, knowledge of the confinement would be immaterial. S. K. Date-Bah in his article, ‘Article 15 of the Constitution and the Tort of False Imprisonment’, takes a firm stance, when he underscored that, “The protection of the civil liberties of individuals is so important a social and political objective that the fact that the particular individual whose liberty has been restricted is not aware of the restriction should not make any material difference to the enforcement of the principle that nobody’s liberty should be curtailed without his consent.”

Proceeding further, Dean Prosser in his work, False Imprisonment: Consciousness of Confinement, affirmed this view that, it should be possible for an individual to sue for false imprisonment, even though he was not aware of his confinement at the time it took place.

It is pertinent, however to note that judicial authority for or against the view that knowledge by the plaintiff of his confinement at the time it took place, is an essential requirement for the tort is quite scanty. No relevant Ghanaian Court Decision on this issue is known to the current writer.

Some five (5) reported English decisions appear to bear upon this problem. The first of these is Heering v. Boyle. In this case, a ten-year old boy was placed in a school operated by the defendant. When his mother asked the defendant to allow the boy to go home over the Christmas holidays, he refused permission unless the term bill was paid. The boy knew nothing of the request or refusal. Subsequently, an action for false imprisonment was brought in his name. The court of Exchequer found that this conduct of the defendant did not constitute false imprisonment since, inter alia, this conduct was not known to the boy alleged to have been unlawfully detained. Baron Bolland stated thus: “…I cannot find anything upon the notes of the learned judge which shows that the plaintiff was at all cognizant of any restraint.”

Considerable doubt is cast upon the above decision by the case of Meerings v. Graham-White Aviation Co. The facts of the case were these: the plaintiff was suspected of stealing some property of the defendant company. He was asked to report for an interrogation 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 of the guards outside was not known to the plaintiff. Lord Atkin in giving his judgement squarely faced the issue we are concerned with here, and made the following remarks: “It appears to me 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 state 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.” The case of Murray v. Minister of Defence has approved the decision of Lord Atkin in the Meerings case by adding that it is not necessary for a person unlawfully detained to prove that he knew that he was being detained.

Moving on, there are three American cases mentioned by Dean Prosser whose effect is to corroborate the view of Lord Atkin enunciated above. They are Robalina v. Armstrong, Commonwealth v. Nickerson ,Barker v. Washburn. These decisions involved respectively, the abduction or confinement of children four and nine years old, and a lunatic, without the consent of the parent or guardian entitled to custody. On this, the eminent Dean postulated that it is a fair inference to make that probably the child of four and the idiot were not aware of their imprisonment but they were nonetheless held to have been falsely imprisoned.

Having considered at great length the scenarios identified in these three cases, I find the social undesirability and the depredation of rights that will be caused, by making knowledge of confinement an essential ingredient in the tort of false imprisonment. The only logical result capable of emerging from this is that, drunken persons, unconscious persons, the mentally incapacitated (lunatics), babies and small children can all be imprisoned with sheer impunity since such persons are most unlikely to be aware of the restraint imposed upon them; indisputably such categories of persons also need protection from unlawful arrests and arbitrary detentions.

Article 14(5) of the 1992 Constitution of Ghana sheds considerable light on the matter being discussed herein. The aforementioned provision states as follows: “A person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person.” A plain reading of Article 14(5) seems to suggest that knowledge of one’s confinement at the time of the confinement is not a sine qua non for there to be liability to pay the compensation provided for by that Article. It is opinion of the current writer that Article 14(5) should be regarded in one way or the other as an enactment of the common law tort of false imprisonment. This is by no means an unassailable view.


For the reasons stated above, I come to the conclusion, however succinctly that in the interest of securing protection from arbitrary detentions for infants, lunatics,

intoxicated persons to mention but a few, knowledge of confinement should not be an essential ingredient in the tort of false imprisonment.