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A PARTY NEED NOT PROVE TITLE TO BE ENTITLED TO DAMAGES FOR TRESPASS OF LAND

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It is a correct statement of law that a claim in trespass is not dependent on proof of title to land. A plaintiff who fails to prove title may not necessarily fail in his action for trespass. If he establishes by evidence acts of exclusive possession, his claims for damages for trespass and an order of injunction may be granted: see Oluwi v. Eniola (1967 ) N.M.L.R 339 at 340; Olaloye v. Balogun (1990) 5 N.W.L.R. (Pt. 148) 24 at 39 – 40, Ajero v. Ugorji (1999) 10 N.W.L.R. (Pt. 621) 1 at 11, Amakor v. Obiefuna (1974) 1 All N.L.R. 119 at 126.

— Edozie JSC. Cosm As Ezukwu v. Peter Ukachukwu Jude Ukachukwu (SC. 160/2000, 2 July 2004)

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trespass to land

TRESPASS IS UNWARRANTED & UNJUSTIFIABLE ENTRY

Now, trespass is an unwarranted or unjustifiable entry or intrusion by one person upon land in possession of another. It does not depend on the intention of the trespasser. Nor can he plead ignorance as to true owner or that he thought the land belonged to him. It is enough that the right of the owner or person in exclusive possession was invaded. It is a settled principle of law that where a person who initially entered upon land lawfully or pursuant to an authority given by the true owner, or person in possession subsequently abuses his position or that authority, he becomes a trespasser ab initio, his conduct relating back so as to make his initial entry trespass.

– Katsina-Alu, JSC. Dantsoho v. Mohammed (2003)

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WHO IS NOT IN POSSESSION OF LAND CANNOT SUE FOR TRESPASS

As an academic proposition of law, anybody not in possession of land cannot sue for trespass to that particular piece of land. Also it is a correct statement of our law that a plaintiff cannot successfully maintain an action both for trespass to a particular piece of land and recovery of possession of the self same land. These two claims are inconsistent and mutually divergent, one being based on the factum of the Plaintiff’s possession and the other on the fact that he is out of possession and then claim recovery of such possession.

– Oputa JSC. Oniah v. Onyia (1989)

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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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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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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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