N.B. This article is particular to Nigeria.
Trespass to Land
Trespass to Land is intentionally entering into land, remaining on land, placing or projecting any object upon land in possession of another, without lawful justification.
Anyone in possession of land may maintain an action against any intruder who makes an unauthorised entry. The form of action that existed for this type of unauthorised entry of land was ‘ trespass quare clausum fregit’. That is, trespass because he has broken the close . ‘Close’ in colloquial parlance meant enclosure but trespass may be committed on unenclosed tracts of land.
How trespass to land can be committed
Trespass to land may he committed in any one or more of the following ways:
- Unauthorised entry into the land.
- By abusing the right of entry.
- Placing or projecting some object upon the land.
Who Can Sue For Trespass to Land?
A trespass to land is a wrong against possession . Any unlawful interference with land or building in possession of another is actionable. Therefore to succeed, the plaintiff must show that he is in possession of the land . Matthew Echere & ors v Christopher Ezirike (2006) 12 NWLR pt 994 336.
In Olagunju v Yahaya (2005) All FWLR pt 247 1466 para a – b, the court held as follows:
” Trespass is a wrong committed against a person who is in exclusive possession of the land trespassed
unto. When a parcel of land which was trespassed onto was in lawfully exclusive possession of
another person, a suit in trespass is not maintainable by the owner who had no right to immediate
possession at the time the trespass was committed. “
The circumstances where one who does not have possession of land can sue for trespass as seen in Soleh Boneh Ltd v Ayodele  1 NWLR pt 99 549 at 551, where the Supreme Court said as follows;
Where the trespass has caused a permanent injury to the land hereby affecting its value, a person not
in possession but he is entitled thereto in reversion can sue for injury to his interest without waiting till
his future estate falls into possession.
Ugoji Vs. Onukogu (2005) ALL FWLR (Pt. 271) 66 @ 78 paragraphs C-E
Amakor v. Obiefuna (1974) 1 All NLR (Part 1) 119.
Note that even a person in wrongful possession can bring an action for trespass against anyone who unlawfully enters the land except the true owner or anyone acting in the authority of the owner.
It should also be noted that trespass to land is a wrong repressible per se . This means that mere entry upon land or building in the possession of another without lawful authority is actionable trespass even if no damage is caused . – Stirling Civil Engineering (Nig) Ltd v Ambassador Mahmood Yahya (2001) All FWLR pt 263 628 at 646.
Acts of Trespass
- Trespass by unjustifiable or wrongful entry
This is regarded as the commonest form of the trespass to land . It involves personal entry by the defendant or some other person procured by the defendant into a land or building in possession of the plaintiff . The slightest crossing of the boundary of the plaintiff is sufficient to enable him recover damages. – Inyang v Registered Trustees of the first century
gospel church (2006) All FWLR pt 314 279 at 301.
Where the defendant intentionally entered into the plaintiff’s land, he may still be liable in trespass and it would not avail him to say he acted under a honest but mistaken belief that he was on his own land or that he has the right of entry or that the land is public land – Ugoji v Onukogu (supra).
Note that entry can be above or below the surface ground or into the airspace above the land.
- Abuse of Right to Entry:
If the defendant refuses to leave after expiration of his right of entry or use of land, he becomes a trespasser.
Alternatively, if due to the misbehaviour of the defendant, the plaintiff revoked his right to be on the land and the defendant ignores a request to quit , he is a trespasser. – Balogun v Alakija (1963) 2 ANLR of 115.
Therein, A employed B as a rent collector. One night after business hours, B allowed A to enter his house, but shortly afterwards, an argument ensued and B asked A to leave and A became abusive and assaulted B. He did not leave B’s house until about fifteen minutes after he had been requested to leave. A was held liable to be in Trespass.
- Placing or Projecting Some Objects Upon the Land:
Placing any material object on land in possession of another is trespass. Similarly, projecting an object onto the plaintiff’s land.
Note that the act causing the trespass must be direct or immediate and not indirect or consequential.
Thus, where the defendant throws any object onto the plaintiff’s land, it is trespass but to pile or gather rubbish near the plaintiff’s land may constitute nuisance and not tort.
In the case of Onasanya v. Emmanuel (1973) 4. CCHCJ 1477. The complaint of the plaintiff was that the defendant encroached about ten feet upon land in his possession when the defendant was laying foundation of a building. Further that the defendant had thrown water and refuse into his land and allowed excreta to escape onto his premises.
It was held that throwing water and refuse were direct acts and this amounted to Trespass while the escape of excreta was indirect invasion and therefore not trespass but nuisance.
Where a person wrongfully occupies a property in the possession of another or wrongfully places any object thereon, he will be liable for continuing trespass which is actionable from day to day, so long as the trespasser or the object remains on the land. See the case of Andrew Okito v. Vincent Obioru (2007) All FWLR pt. 365 pg 568.
Scope of Trespass to Land
The owner of the land is presumed to own everything beneath it, the centre of the earth and above it to the heavens .
This is expressed as “Cuius est solum, eius est usque ad coelum et ad inferos”. See the case of Corbett v. Hill (1870) L.R 9 Eq.671. Thus, any unauthorized interference with the subsoil, for example, digging for minerals or subterranean activity or the violation of the airspace above the land is trespass.
Note that this maxim cannot be regarded as decisive in modern times when mineral exploitation and Air travel and Satellites are commonplace. Even more than several hundred years ago, it was described as “fanciful” by Bowen L.J in Wandsworth Board of Works v. United Telephone Company Ltd. (1884) 13. 2B Division pg. 904.
The modern attitude as shown by authorities is to ignore the literal interpretation of the maxim.
Thus, it has been held that the rights of an occupier in the airspace above his land extend to only such a height as is necessary for the ordinary use and enjoyments of land and buildings thereon.
Consequently, there was no trespass where the defendant flew his aircraft at a height of several hundred feets above the plaintiff’s house. See the case of Bernstein v. Skyviews & General Ltd. (1977) 3 EWHC QB 1 High Court.
Note however that if an aircraft or anything in it falls to the ground, then there is trespass. See Section 49, Civil Aviation Authority Act Cap C13 LFN 2010. It provides:
Section 49(1) “No action shall lie in respect of trespass or nuisance by reason only of, or of the ordinary incidents of the flight of an aircraft over any property at a height above the ground which is reasonable having regard to wind, weather and all the circumstances of the case.”
Section 49(2): “Where loss or damage is caused to any person or property on land or water by a person
in or an article of person falling from an aircraft while in flight, taking off or landing, then without
prejudice to the case of contributory negligence, damages, in respect of the loss or damages shall be
recoverable without proof of negligence or intention”.
Note further that, it is actionable trespass where a crane when in operation swung over the roof of the plaintiff’s factory at a height of fifty feet. See Woolerton Ltd v. Costain (1979) 1 WLR 411 where the defendant’s signboard projected into airspace above the plaintiff’s shop . See Kelsen v. Imperial Tobacco Co. Ltd (1957) 2 Q.B pg 334.
Possession as a ground for an action of Tort of Trespass to Land
The term “possession” for our own purpose refers to a state of owning or having a thing in one’s hand or powers . We are concerned with de facto possession I.e actual possession.
Possession is seen as form of ownership conferring rights to the thing under possession. Therefore, the law protects even wrongful possession against all except one with the better title to the thing. See the case of Amakor v. Obiefuna Supra . In Owe v. Osinbanjo (1965) All NLR pg 72 at 76 , Coker JSC said as follows:
“Once the plaintiff can establish his possession, even if he be a trespasser, the defendant can only
justify his entry on the land by showing a better title”.
See the case of Adeshoye v. Shiwoniku (1952) 14 WACA pg 86. See also Oguehe v. Iliyasu (1971) NNLR pg 157. In that case, the plaintiff, a Native of Kwara State was an employee of the Kano State Ministry of Works. He was in possession of a plot of land in Kano State on which he constructed a house. The land was granted to him by the owner in breach of the Land Tenure Act 1962, Section 27 and 32 of which provided to the effect that Land may not be alienated to a “non native” without the consent of the Commissioner of Lands and that any such alienation without consent shall be null and void.
The defendant, suspecting that the plaintiff had used some Ministry of Works material and labour on the house, purported to act on behalf of the Ministry, caused a bulldozer operator to enter the plaintiff’s land and demolish the house. It was held that the plaintiff had a good cause of action to trespass because:
“… it is bare, de facto, physical possession or occupation which entitles a person to bring an action for
Note that the burden is on the plaintiff to prove that he was in de facto possession of the land at the
relevant time. See Wuta- Ofei v. Danquah (1961) 3 All E.R.596.
Note further that where both the Plaintiff and defendant claim to be in possession of land, the Court will resolve the doubt in favour of the one who can prove title to the land I.e. the one who has “the right to possess”. See Efarrah v. Adekunle (1962) 5 ENLR 55 p. 57, Awoyoolu v. Aro (2006) 1 JNSC 147 at 170, Yussuf v. Abina (1968) 2 All NLR.
In Jones v. Chapman (1848) 154 E.R 777 at p.724, Maule J. observed that:
“If there are two persons in a field each asserting that the field is his, and each doing something in
assertion of the rights of possession, and if the question is, which of those two is in actual possession, I
answer, the person who has the title is in actual possession and the other is a trespasser”.
In Efana v. Adekunle Supra, Idigbe J. said:
“If there is a dispute as to which of two persons is in possession, the presumption of law is that the
person having title to the land is in possession”.
See Amayo v. Erinwingboro (2006) 5 JNSC pt 19, pg 421
It should be noted that if a plaintiff has a right to immediate possession of the land, he can, once he enters unto the land, sue for trespass committed by third parties between the date of accrual of his rights and his entry. Thus is often called Trespass by Relation.
For example, a lessor who has a right to reenter after the termination of the lease, may, after re entry, sue in respect of any trespass committed between the time the lease determined or expired and his re entry. See the case of Barnett v. Guildford (1855) 156 ER 728.
Note further that it is a defence to an action for trespass that the defendant has a right to possession of the land, or acted under authority of the person having such right ( jus tertii ). See Oguehe v. Iliyasu Supra . However, jus tertii will not avail a defendant against the plaintiff who is in de facto possession unless the defendant entered under the authority or as the agent of such third party (owner). See Lajide v. Oyelaran (1973) 3. WSCA 93 at 95.
Trespass ab initio
Where the defendant’s entry is by authority of law as opposed to the plaintiff’s authority, and the defendant subsequently abuses that right, then he becomes a trespasser ab initio (from moment of entry). See The Six Carpenters’ Case (1610) 77 ER 695.
In that case, the defendant entered a tavern, a public place by virtue of the nature of its business and signboard outside which is an invitation to the public to treat. They ate and drank and paid for the first service and after consuming the food and drink for the second service, they refused to pay and the proprietor sued to recover damages.
The court held that the carpenters, having entered the premises on invitation extended by the proprietor to the public were not trespassers from the beginning. The court held that:
“Where an entry, authority or licence is given to anyone in law and he abuses it, he shall be a trespasser ab initio; but not where the authority or license is given by the party.”
Note that, while the modern application now lies in the use of the Police Search Warrants, it has now been removed by cases such as Elias (1934) 2 KB 164 which held that:
“Partial abuse of authority does not rend everything done under it unlawful”.
In Chick Fashions West Wales Ltd v. Jones (1968) 1899, while searching the Plaintiff’s premises for the goods, the Police seized goods which they mistakenly thought to be stolen, the seizure was held to be lawful as Police entering premises with a warrant had authority to remove anything which they believe to have been stolen.
Remedies available in Trespass to Land
A plaintiff in trespass normally sues for Damages and injunction to restrain the trespasser. Damages and injunctions are judicial remedies in the Court of Law. (There are two types of Remedies: Judicial and Extra judicial).
The possessor of land may also avail himself of certain extrajudicial reliefs, recognized under the common law. These include: Forcible ejectment and distress damage feasant, which usually come in the nature of self help.
- DAMAGES: Recall that trespass to land is actionable per se (need no proof). Where the plaintiff has suffered special damage by reason of the trespass, he has to specifically plead and prove such additional damage and it must be part of his or her pleadings.
- INJUNCTIVE RELIEF (INJUNCTION): An Injunction is an equitable remedy which is not available as a matter of course. The court has to weigh the equity in the case to decide whether to exercise its discretion in favour of the plaintiff applicant or not. Where a plaintiff applies for an injunction, he must precisely spell out the area to be covered by the injunction sought. The injunction granted or sought may be for a temporary duration or perpetual.
- FORCIBLE EJECTMENT: The possessor of land may use reasonable force to eject a trespasser who has entered the land forcibly or refused to leave when requested. What amounts to reasonable force depends on the circumstances of each case and the amount of force employed by the trespasser to gain his entrance. It is submitted that self help is a dangerous and inadvisable remedy due to its attendant disadvantages.
- DISTRESS DAMAGE FEASANT: The occupier of land at common law has the right to detain trespassing animal as well as other chattels which did damage in the land. Note that, before resorting to this extra judicial remedy, the following conditions must be followed:
- The thing that caused the damage must be unattended when detained. For example, a cow which enters your land and eats your crops cannot be destrained if the driver is present.
- The destrainor must not sell the thing destrained, instead he must take proper care of the chattel/thing.
- There is is no retroactive power to destrain a trespassing chattel for damage done on the previous occasion.
- There is a destrainor has to release the chattel when its owner has paid proper compensation I.e to say compensation ends restraint. The self help of Distress Damage feasant is an alternative to an action for damages.
- Only the particular chattel which did the damage could be seized.
Note that Section 7(1) of the Animals Act (1971) has abolished the rights to seize any animal by way of distress damage feasant.
Defences to Trespass to Land
- Licenses: A license is the consent which does not pass any interest in the property to which it relates but merely prevents an act which it is given from being unlawful. See Hill v. Tupper (1863) 159 ER pg. 51. An owner who permits another to enter into his land cannot sue that person for trespass. See Adebajo v. Brown (1990) 3 NWLR pt. 144 pg. 661.
- Laches: This can be referred to as Slackness or unreasonable delay in asserting and enforcing a right which is lost after the time limited by law to enforce it.
For a successful plea of laches, the plaintiff must have knowledge of all the facts, giving him a course of action. He must have delayed in instituting an action for so Long a period so that it can be inferred that he did not exercise his right.
Note that where there is no statutory prescription, period to be considered long will depend on the circumstances of each case. In the case of Manko v. Bonso , it was held that a delay of twenty two years was too long. The plaintiffs knew about the voidable sale of a family land sold in 1885 and they got to know in 1914 and brought an action in 1936.
- Acquiescence: This roughly indicates assent to or encouragement and permission on the part of the plaintiff. Acquiescence shares similar elements in common with laches but they are not similar. In the case of Duke of Leeds v. Earl of Amherst (1846) 2 Chancery 117 at 128. The true nature of acquiescence is given as follows:
“If a party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection, while the act is in progress, he cannot after wards complain. That is the proper sense of the word.”
Acquiescence shares the two elements of laches but it has four elements namely:
A. A mistake in the part of the defendant that he is the owner.
B. The expenditure of money by the defendant on the land to the knowledge of the plaintiff.
C. The exercise of acts of ownership by the defendant to the knowledge of the plaintiff.
D. Conducts of the plaintiff showing the abandonment of his rights.
- Justification (By law): When justification is provided by law, acts which would otherwise be trespass are not trespass. For example, powers of the police under the Police Act or Evidence Act to enter into the premises to search them.
- Necessity: The House of Lords in the case of Re. F (1990) 2 AC pg 1 74 identified three standard situations where the defence of necessity might apply:
* Cases of public necessity. For example, the destruction of property to prevent the spread of fire.
* Case of private necessity. In Cope v Sharpe (1912) 1 KB 496. X’s land caught fire, his servants attempted to put out the fire. Z’s gatekeeper set fire to land between the fire and some of Z’s nesting pheasants. In an action for trespass, Z’s gatekeeper was held not liable as there was a real and imminent danger and he had done what is reasonably necessary.
An action taken as a matter of necessity to come to the aid of another person whose property or person is in imminent danger and it is not practicable to communicate with the assisted person. The action must be such as a reasonable person would take acting in the best interest of the assisted person.
Note the necessity is a defence to trespass to land, it may not be a defence to another Tort such as
- Jus Tertii: This is a claim by the trespasser that he has the authority of a third party who has a better title
to enter the land.
Lecture(s) – Dr Alayinde | Faculty of Law, Obafemi Awolowo University, Ile-Ife.
Contributor: Abass Olayinka