When does trespass to land become actionable?

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 protects possession of land rather than ownership. A trespasser does not by the act of trespass secure possession in law from the person against whom he is in trespass. See also the case of Odogwu v. Ilombu (2007) 8 NWLR (Pt. 1037) 488 at 510, Obueke v. Nnamchi (2012) 12 NWLR (Pt. 1314) 327 SC.

Types of Trespass:

Apart from trespass to land, there are three (3) types of trespass which fall within the broad category of intentional trespass to person which has been identified as follows:

Trespass to the person:

This is an unlawful interference with the person of another. “Person” here refers to a natural person and there are three (3) ways to trespass to person in which the interference may occur as follows:

i).       Assault:

An assault is an apprehension of immediate danger to the person. It occurs when any person perceives immediate danger to his body. The person who is the source or cause of the apprehension is liable in assault. An assault may be committed by any person no matter his status or age as it is both a civil and criminal wrong proof of which is beyond reasonable doubt. See the cases of Kasumu Shopitan v. Chief F.M. Ogunlewe (1961) WNLR 119, Smith Okuarume v. Timothy Obabokor (1966) NMLR 47.

ii.)      Battery:

Battery is any unauthorized contact with the body of another person. Battery consists in applying force, however slight, to the person of another hostilely or against his/her will. The two torts can be caused by the same conduct, and usually, an assault will precede a battery and so the two torts typically go together. However, there are many instances, where only one of the torts is committed.

Moreso, the difference between assault and battery is that battery requires the actual application of force whereas assault does not. See the cases of Fasaro v. Milbourne (1933) 4 NLR 85, Afisi v. Aghakpe & Anor. (1987) 1 QLRN 216.

iii).     False Imprisonment:

False imprisonment refers to the infliction of bodily restraint, i.e., the restraining on freedom from physical movement wrongfully. “False” in this context, means that the restraint is unauthorized and therefore wrongful. See the case of Onyedinma v. Nnite (1997) NWLR (Pt. 493) 333 CA.

It is important to note that the liberty of the person is jealously guarded by the law and once it is shown that one’s freedom of movement is restrained, no matter for however short a duration, the victim is entitled to compensation in law. See the case of Bird v. Jones (1845) Q.B.D. 742.

How to prove or establish trespass:

The burden to establish trespass to land rests on the person with better title and possession to the land. It is trite law that a party who is not in possession of the land and has no legal right to the land, because he has no title to the land cannot sue in trespass. See the case of Atibu v. Azeez (2003) 5 NWLR (Pt. 814) 642 at 670.

However, in order to establish criminal trespass, the prosecution must prove an offence to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent or, at any rate, constituted no more that a subsidiary intent. See Sinnasamy Salvanavagam v. The King (1951) AC 83.

In criminal trespass, the prosecution must prove the existence of the following conditions which are:

i).       Unlawful entry into or upon a property in the possession of another, or unlawfully remaining there,

ii).      An intention to commit an offence, or to intimidate, insult or annoy the person in possession of the property. See section 342 Penal Code Law, CAP 89, Laws of Northern Nigeria, 1963, Spiess v. Oni (2016) Vol. 5-6 MJSC 30.

In order to succeed in trespass, the plaintiff must establish that he has possession of the goods or land or that the trespass was against his person. Possession here must be exclusive, but is not confined to only physical possession. Any form of possession is sufficient so long as it is clear and exclusive. It might be constructive as where a tenant has taken a tenancy of the room and has merely been handed the keys. The slightest amount of possession is enough to maintain an action in trespass. Even if the plaintiff’s right to possession is defective, but nevertheless, he is in actual possession, he can maintain an action in trespass against anybody, save against a party with a better title. See the cases of Mathew Echere & Ors. v. Christopher Ezirike (2006) 12 NWLR (Pt. 994) 386 at 407E, Wuta-Offei v. Danquah (1961) 3 All E.R 596, Law of Torts (with cases and materials) written by A.O.N Ezeani and R.U. Ezeani, Odade Publishers, 2014.

When does trespass to land become actionable?

Conceptually, trespass to land consists in any unjustifiable intrusion by one person upon the land in possession of another. Also, trespass is actionable at the suit of the person in possession of the land who can claim damages or injunction or both. See Ogunbiyi v. Adewunmi (1988) 3 NSCC 268.

Limitation to action in trespass and the principle of continuing trespass:

By virtue, and pursuant to section 2 of the Limitation of Action Act, 2004; a claim of trespass to land is barred by lapse of the statutory period of six (6) years from the accrual of the cause of action. See the case of Olusanya v. Abdulbaki & Ors (2022) LPELR-58771CA, section 15(2) of the Limitation Act, CAP 522 Laws of the Federal Capital Territory.

It is very important to state that a person who enters into another person’s land by force or a land grabber who takes over another person’s land and remains there for a long time cannot plead a statute of limitation after ten (10) years of his occupation. The reason is that each day he remains on that land amounts to a fresh trespass. See the case of Okanu v. Anoruigwe & Anor (2019) LPELR-48835.

The term “continuing trespass” connotes a permanent invasion or encroachment on another’s land. It refers to cases where the alleged wrongful act remains unabated to the detriment of the complainant. The principle of continuing trespass will come in aid of a claimant who alleges trespass and that trespass continues and prevents his claim from being statute barred. In other words, continuing trespass is not caught by the statute of limitation. See the cases of Dosunmu v. NNPC (2014) 6 NWLR (Pt. 1403) 282 CA, Ekweozor v. Regd. Trustees S.A.C.N (2014) 16 NWLR (Pt. 1434) 433 CA and Oriorio v. Osain (2012) 16 NWLR (Pt. 1327) 560SC and A casebook on Tort, 5^th Edition by Tony Weir, published by Sweet & Maxwell, 1990.

Remedies for trespass to land:

In a claim for trespass, a claimant needs not necessarily be the owner of the land. What is required is that the claimant proves his exclusive possession and not title as these are the available remedies in an action for trespass viz:

a).      Damages: This is the amount by which the value of the property is diminished as a result of the trespass, not the cost of reinstatement. It is the law that every unlawful and unauthorized entry into land in possession of another is actionable and for which damages would be awarded. Such damages are awarded as monetary compensation for the legal injury which a defendant has committed on the property of the claimant. The compensation in such a case is imposed by law.

Generally, the rule is that where a person has by trespass made use of another person’s land, the owner of the land is entitled to receive by way of damages such sum as should be reasonably be paid for the use. See the case of Moshood v. Bayero (2001) 52 WRN 42 CA, Bamgbegbin v. Oriare (2001) 5 NWLR (Pt. 707) 682 at 656, Ameen v, Amao (2013) 9 NWLR (Pt. 1358) 159 SC, Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1377) 274 SC, Attorney General, Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646, Ibrahim v. Mohammed (1996) 3 NWLR (Pt. 437) 453, Ajayi v. Jolaosho (2004) 2 NWLR (Pt. 356) 89. See Nigerian Cases on Trespass to Land (Rationes Decidendi) by Lawglobalhub.com published on 30^th May, 2022, Law, Cases and Materials on Torts in Nigeria by J.I. Targema, published by Innovative Communications, 2014.

b).      Injunction: A plaintiff may, in an action for trespass, claim an injunction against the tortfeasor. This is “claimed” or “granted” as a consequential relief to protect the legal right asserted or established in the case. An injuction will also be granted to prevent a multiplicity of suits or to prevent irreparable damage or irredeemable mischief. The governing consideration is that an injunction will be granted where damages will not be adequate remedy and the protection of the right in specie is desired. In those circumstances, an injunction will be the only way to do complete justice. See the cases of Sorungbe v. Omotunwase (1988) 19 NSCC (Pt. 3) 252 at 268, Obanor v. Obanor (1976) 2 SC (Reprint) 1, Oyedare v. Keji (2005) 1 SC (Pt. 1) 1, Onagoruwa v. Akinremi (2001) 6 SCNJ 76, Olorunfemi v. Asho (1999) 1 NWLR (Pt. 585) 1 at 9.

c).      Ejection: The occupier of the land may eject a trespasser after they have been requested to leave and allowed peaceably so to do. No more force may be used than is reasonable in the circumstance, otherwise the occupier may be sued for assault.  

Conclusion:

It should be noted that a claim for trespass is not dependent on the claim for a declaration of title to land, because the issues to be decided on the claim for trespass are whether the claimant has established his actual possession of the land and the defendant trespassed on the land. These are separate and independent issues different from that in a claim for a declaration of title. See the case of Adewale v. Dada (2003) 18 WRN 148 SC and Oluwi v. Eniola (1967) NMLR 339.

Therefore, the exercise of a legal right by force of law to retain an undisturbed possession of property against all wrong doers but not against the established lawful owners or those claiming under lawful owners is predicated upon the following:

1. A claim for trespass and injunction is independent of the claim for declaration of title to the land. See the case of Animashaun v. Arupe (2003) 37 WRN 61 CA.
2. A claim for trespass is not bound to fail because a claim for declaration of title fails. See Oluwi v. Eniola (1967) NMLR 339 at 340.

• A person in possession of land can maintain an action in trespass against anyone who cannot show a better title. See the cases of Amakor v. Obiefuna (1974) 3 SC 67, Onyekaonwu v. Ekwubiri (1966) 1 All NLR 32, Oduola v. Coker (1981) 5 SC 197.

In other words, a party who has no title over a land but who is in possession of the land may successfully sue for trespass if any entry is made into the land without his consent. See Land Disputes and Litigation Practice by Ugochukwu Mike Mgbeahuru as published by Elyon Quest Frontiers Ltd in 2017.

For further legal assistance on topical legal issues, do not hesitate to contact the author:

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