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

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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)

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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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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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IN TRESPASS, TITLE SUPERCEDES EXCLUSIVE POSSESSION

Although generally speaking, a claim for trespass is rooted in exclusive possession or the right to such possession of the land in dispute, 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: see Amakor v. Obiefuna (1974) 1 All NLR 119.

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

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

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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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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