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AN ACTION IN TRESPASS IS BASED ON EXCLUSIVE POSSESSION

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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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trespass to land

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 COULD BE PREVENTED WITH REASONABLE FORCE

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 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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RATIONALE BEHIND TRESPASS TO LAND – WHERE AN ACT NOT SUPPORTED BY LAW

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted by the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

— Lord Camden in Entick v Carrington [1765] EWHC KB J98

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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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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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