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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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)
It is an elementary principle of law that whenever a claim for trespass is coupled with a claim for an injunction, the title of the parties to the land in dispute is automatically put in issue. See Akintola v. Lasupo (1991) 3NWLR (Pt.180) 508 at 515; Abotche Kponuglov. Kodadja(1933)2W ACA24; Okorie v. Udom (1960) 5 FSC 162, (1960) SCNLR 326; The Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (PU58) 514. The position is even much stronger where, as in the present action, the plaintiff claims a declaration that he is the person entitled, as against the defendant, to occupation and possession of the piece or parcel of land in dispute. The present action involves not only damages for trespass and perpetual injunction, but a declaration as to the plaintiff’s entitlement to the occupation and possession of the land in dispute. It cannot be doubted, in these circumstances, particularly having regard to the pleadings filed in the suit and the evidence of the parties, that the title of the parties to the land in dispute is what is primarily in issue in the case. This is simply because the law is well settled that when the issue is as to which of two claimants has a better right to the possession or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title thereto. See Aromire v. Awoyemi (1972) 1 All NLR (PU) 10 at 12 Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263 etc. In the same vein, where two parties are on land claiming possession, the possession being disputed, trespass can only be at the suit of that party who can show that title of the land is in him. See Awoonor Renner v. Daboh (1935) 2 WACA 258 at 259 and 263 Umeobi v. Otukoya (1978) 4 SC 33.
— Iguh, JSC. Olohunde v. Adeyoju (2000) – SC.15/1995
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).
In order to succeed in an action of trespass to land, plaintiff must prove and have present exclusive possessory title i.e. he must be in exclusive occupation.
– Obaseki, JSC. Ekpan v. Agunu (1986)
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
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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