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

Dictum

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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CLAIM FOR TRESPASS COUPLED WITH INJUNCTION PUTS TITLE OF PARTIES IN ISSUE

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

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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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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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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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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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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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