When Does Trespass To Land Become Actionable?

• Published date: 29 February 2024
• Subject Matter: Real Estate and Construction, Criminal Law, Land Law & Agriculture, Crime
• Law Firm: SK Solicitors
• Author: Mr Kingsley Izimah

The essence of an action in trespass is a direct interference with another person's land or goods or person. It developed from the need to protect individual interest in persons, property and personal liberty where there is an interference with any of these interests.

In the interest of protecting security of persons and property, the law of tort recognizes a remedy when a protected interest has been violated even when the victim has not suffered any damage.

Thus, the action in trespass is based on the concept that liability in tort could arise even if no damage has been suffered. See the case of Okoye v. Onyekwum (1966-7) 10 ENLR 97, Law, Cases and Materials on Torts in Nigeria by J.I. Targema, published by Innovative Communications, 2014.

Introduction:

It is trite law that a claim for trespass is deeply rooted in exclusive possession or the right to such possession of the land in dispute at the time of the trespass. In other words, in an action for trespass, all that the person is required to prove in court is not title to the property in dispute but exclusive possession of the property on which the trespass has been committed. See the cases of Olanrewaju v Communication Services Ltd v. Sogaolu (2015) 12 NWLR (Pt. 1473) 311 CA, Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578, Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt. 93) 215 and Amakor v. Obiefuna (1974) 3 SC 67.

It follows therefore that a person who is able to prove exclusive possession of a piece of land can maintain an action in trespass against any person unless such a person can prove a better title to the land. Also, a person in possession even without a valid title or with a defective title can sue in trespass. See the cases of Owhonda v. Ekpechi (2003) 49 WRN 1 SC and Udo v. Obot (1989) 1 NWLR (Pt. 95) 59.

It is also the law that proof of ownership is prima facie proof of possession unless there is evidence that another person is in possession - jus tertii; but if there is a dispute as to which of two persons is in possession, the presumption is that the person having a title to land is in possession. Thus, a person who is not in possession of land and who had no title to the land cannot sue for trespass and injunction. See the case of Akibu v. Azeez (2003) 22 WRN 96, Aderibigbe v. Obi (1971) All NLR 116, 121 - 122.

What is trespass:

In the case of Dantshoho v. Mohammed (2003) 30 WRN 61, the Supreme Court held that:

"Trespass is an unwarranted or unjustifiable entry or intrusion by one person upon the land in possession of another. It does not depend on the intention of the trespasser nor can he plead ignorance as to the 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."

Thus, every direct and unjustifiable interference with another person's land or goods or person amounts to trespass. The law...