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TRESPASS COULD BE PREVENTED WITH REASONABLE FORCE

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I agree with the submission of the Chief Legal Officer that the proposition that extra-judicial measure cannot be used to recover possession of land is not an inflexible rule. I find to be particularly apposite the decisions in Umeobi v. Otukoya (supra), and Awojugbagbe v. Chinukwe (supra), which the learned counsel cited in buttress of his argument and which in principle do not rule out the use of reasonable force to protect and repel a clear act of trespass.

– Olagunju JCA. Ofodile v. COP (2000)

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trespass to land

SUBJECT TO LIMITATION LAW, AN OWNER MAY NOT WARN A TRESPASSER IN HIS LAND

There is no duty on a person having estate or interest in land or other property for that matter to raise protest against a trespass or encroachment on the property or invasion of his right on same if he has no reason to believe that such a trespasser, encroacher or invader mistakenly conceives himself to be acting lawfully because in such a situation there cannot be said to be any misrepresentation, delusion or inaction from the owner’s part, encouraging or fostering the trespasser in expending money by developing the property. There is nothing to stop the owner from asserting his right against the trespasser at any time however that may be, subject to any applicable statutory provision of limitation.

– Wali JSC. Kayode v. Odutola (2001)

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AN ACTION IN TRESPASS IS BASED ON EXCLUSIVE POSSESSION

An action In trespass Is based on exclusive possession of the land. See Mohammed Ojomu v. Salawu Ajao (1983) 9 S.C. 22; Amakor v. Obiefuna (1974) N.M.L.R. 331; (1974) 3S.C. 66. It lies against the whole world except one who can show a better title. See Aromire & Ors. v. Awoyemi (1972) 2 S.C. 1; Amakor v. Obiefuna (supra) at 77. Trespass is a wrong to possession. It constitutes the slightest disturbance to possession by a person who cannot show a better title. See Abotche Kponugho & Ors. v. Adja Kodadja (1933) 2 WA.C.A. 24 per Lord Alness. In order to succeed, a plaintiff must show that he is the owner of the land or that he had exclusive possession of it. A trespasser does not by the act of trespass secure possession in law from the person against whom he is in trespass. Jimoh Adelakun v. Sabitiyu Oduyele (1972) 6 S.C. 208 at 210. A trespasser without a claim of right is a trespasser ab initio and the onus is on him to prove that he has a better right to possession In order to succeed in the defence. See O. Solomon & Ors. v. A.R. Mogaji & Ors. (1982) 11 S.C. 1. When trespassers knowingly and unlawfully take possession of lands, the defence of laches is not available to them. See Lasupo Akanni & Ors. v. Makanju (1978) 11 & 12 S.C. 13 at 21.

— Obaseki, JSC. Foreign Finance Corp. v Lagos State Devt. & Pty. Corp. & Ors. (1991) – SC. 9/1988

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NO CONFLICT BETWEEN COMMON LAW “CONTINUING TRESPASS” & LIMITATION LAW

It has been argued that there is conflict between the common law principle and the provision of the limitation law. I respectfully disagree. One complements the other. They are not conflicting. It is not only in Nigeria that there are limitation laws. There is Limitation Act of 1980 which is a British Act of parliament applicable only to England and Wales. The British Act Limits actions in tort to 6 years. Section 2 of the Act reads: “Time limit for actions founded on tort: ‘An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
In spite of the above provision, it does not apply to continuing trespass. It is therefore in my respectful view an error to argue that the provision of the various Limitation Laws in Nigeria do not allow for the doctrine of continuing trespass.’”

Per Awotoye, JCA. Chikere & Ors. v Chevron Nigeria Ltd. (2018) LPELR-44123 (CA).

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TRESPASS TO LAND IS ROOTED ON EXCLUSIVE POSSESSION

Amakor v. Obiefuna (1974) 1 All N.L.R. (Part 1) at page 128 saying:- “Generally speaking, as a claim of trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession, of the land in dispute. But once a defendant claims to be the owner of the land in dispute title to it is put in issue, and, in order to succeed, the plaintiff must show a better title than that of the defendant.”

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ONE ALLEGING TRESPASS IS TO PROVE TRESPASS

Accordingly, where one in possession of land is said to be a trespasser, the onus is on the person asserting such an allegation to establish that he has a better title to the land than the person in possession. See Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67. (1974) 1 All NLR 119 OR (1974) NMLR 331. It will now be necessary to ascertain whether the appellant was able to prove a better title to the land in dispute than the 1st respondent.

— Iguh, JSC. Kyari v Alkali (2001) – SC.224/1993

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TRESPASS TO LAND REPRESENT PAYMENT FOR TORT OF TRESPASS, NOT VALUE OF LAND

When general damages are sought on the basis of trespass to land, they would represent payment for the tort of trespass, not the value of the land; and the land remains at least under the possessory ownership or right of the plaintiff claimant.

— Uwaifo, JSC. Rockonoh v. NTP (2001) – SC.71/1995

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