Trespass to Land - A Legal Overview PDF

**TRESPASS TO LAND** - **DEFINITION** - **NATURE** - **ACTS OF TRESPASS** - **REMEDIES** - **DEFENCES** **What is Land? Land includes the surface of the earth, the subsoil, and the airspace above it as well as all things that are permanently attached to the soil, it also includes str...

**TRESPASS TO LAND** - **DEFINITION** - **NATURE** - **ACTS OF TRESPASS** - **REMEDIES** - **DEFENCES** **What is Land? Land includes the surface of the earth, the subsoil, and the airspace above it as well as all things that are permanently attached to the soil, it also includes streams and ponds.** - Trespass to land means interference with the possession of land without lawful justification. - The defendant without lawful justification: 1. Enters upon a land in the possession of the plaintiff 2. Remains upon such land 3. Directly places or project any material object on the land In ***Oriorio v. Osain (2012) 16 NWLR (Pt. 1327) 560,*** trespass to land is the wrongful and unauthorized invasion of the private property of another. It is trespass to land provided the entry into the land of another by a person is not authorized. Every invasion of property, be it ever so minute, is a trespass, neither use of force nor showing any unlawful intention on the part of the defendant are required. Even an honest mistake on the part of the defendant may be no excuse and a person maybe liable for the trespass when he enters upon the land of another person honestly believing it to be his own. In trespass, the interference with the possession is direct and through some tangible object. If the interference is not direct but consequential, the wrong may be a nuisance. For instance, planting a tree on another's land is a trespass but if a person plants a tree over his land and its roots or branches escape on the land of the neighbour, that will be a nuisance. Trespass could be committed either by a person himself entering the land of another person or doing the same through some material object, e.g., throwing of stones on another person's land, driving nails into the wall, placing ladder against the wall or leaving debris upon the roof. Allowing cattle to stray on another person's land is also a trespass. Going beyond the purpose for which a person has entered certain premises or crossing the boundary where he has the authority to go amounts to trespass. Thus, if a person who is allowed to sit in a sitting room enters the bedroom without any justification the entry into bedroom is a trespass. However, if the area to which a person is lawfully invited and one which is a prohibited area has not been properly marked, a person does not become a trespasser merely by his going beyond the area of invitation. NATURE Trespass is designed to protect possession of land rather than ownership, thus a landlord who has let the land to a tenant and thereby given up possession to the tenant for a period of time cannot maintain an action in trespass unless he can show that the trespass has caused or will cause a permanent damage that will affect his reversionary interest. Trespass to land is rooted in a right to exclusive possession of the land allegedly trespassed, In an action for t respass the onus of proof of possession lies on the plaintiff to show that he was in possession of the land at the material time See *Wutaofei V Danquah*. trespass to land is therefore actionable at the instance of a person in possession of the land**.** In ***Kachalla v. Hamman & anors** it was held* Only a person in possession of land at the material time can maintain an action for damages for trespass Where there are two conflicting proofs of possession, the court will resolve the doubt in favour of the one who can proof title. In ***Okolo v. Uzoka*** Court stated "It is the law and this Court has so held times without number that trespass to the land is actionable at the suit of the person in possession of the land, the slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title See also ***Efana v Adekunle*** Trespass is a wrong against possession rather than ownership. Therefore, a person in actual possession can bring an action even though, against the true owner, Trespass is actionable per se and the plaintiff need not prove any damage for an action of trespass. Note that where there is a joint possession, it is assumed that the occupiers enjoy unity of possession thus, one joint tenant cannot maintain an action against the other except where the other has excluded or ousted the plaintiff from the land or committed a destructive waste of common property. **ACTS OF TRESPASS** **TRESPASS BY WRONGFUL ENTRY:** this is the personal entry by the defendant or his agents into a land or building occupied by the plaintiff, the slightest crossing of the boundary occupied by the plaintiff is sufficient example sitting on a neighbour's fence. Where the defendant's entry is intentional, he will be liable in trespass, he cannot raise a defence of honest mistake that he believes the land to be his', of that the land is a public land, or that he acted under the mistake of fact or law. But where the entry is unintentional, for instance a car skids off the road into the plaintiffs compound he cannot recover damages under trespass but under Negligence. Intentional trespasser is strict liable for all damage caused by his presence either wilfully or accidentally **TRESPASS BY REMAINING ON LAND:** A person is liable in trespass if having entered another person's land lawfully and remains there after his right of entry has ended. For instance, a person pays for entry into a cinema which guarantees his entrance, but refuses to leave after the show of the movie he came for. See *Balogun V Alakija* the court held that where a person is lawfully on the premises of the other once the licence or his invitation is terminated, he is only allowed a reasonable time to leave and thereafter becomes a trespasser Entering a certain premise with the authority of the person in possession amounts to a license. A licensee becomes a trespasser when he refuses to leave within a reasonable time after which his purpose of his license has been accomplished. Permitting a person to take a photograph of a flower in your compound or permitting a person by the cinema management to see a film are examples of license. Note a tenant whose tenancy has elapsed is not a trespasser until the landlord has required him to give up possession and he refuses until such demand is made, he is a tenant by sufferance See *Ogbakunanwu v Chiabolo.* **TRESPASS BY PLACING THINGS ON LAND:** Bringing any object on the land of another or to bring any object into direct contact with another's land without lawful justification is a trespass. One of the essentials of this trespass is the direct contact where it is not direct, it is not trespass but nuisance e.g. blowing of noxious gas into a house, the differences between direct and indirect invasion of land was illustrated in *Onasanya v Emmanuel* Where a person wrongfully enters a land and remain upon the land or places an object there, he will not only be liable for the initial intrusion but also for failure to remove himself or the object from the land, so long as he or the object remains on the land there is a CONTINUING TRESPASS giving rise to an action de die in diem (from day to day) until the condition is abated see *Lajide V Oyelaran* The defendant had entered the plaintiffs land and laid a foundation of a building there by liable for continuing trespass and that the defendant has stopped personal entry on the land is not a defence. **TRESPASS AB INITIO** When a person enters certain premises under the authority of some law and after having entered there, abuses that authority by committing some wrongful act there, he will be considered to be trespasser ab initio to that property. Even though he had originally lawfully entered there, the law considers him to be a trespasser from the very beginning and presumes that he had gone there with that wrongful purpose in mind. TRESPASS ABOVE AND BELOW THE SURFACE Trespass is possible not only on the surface of the land, it is equally possible by an intrusion on the subsoil. Taking minerals from out of the subsoil is an example of the same. The law is that whoever owns the surface of land also owns everything above it to the heavens and everything below it to the earth. Thus, any invasion beneath or of the airspace above constitute a trespass. Note the right only extends to such height as it is necessary for ordinary use S9 of the Aviation Act provides that No action shall lies in trespass or nuisance by reason only of or of the ordinary incident of flight of an aircraft over a property at a height above the ground which is reasonable having regard to wind, weather and all circumstances but that if damage is caused to any property by an aircraft in flight taking off or landing or as a result of a person or thing falling from such aircraft then the owner of the aircraft will be liable for the damage without proof of negligence or intention. As regards beneath the soil, where mining rights have been granted by the owner of the surface there will be no trespass when the grantee exercises those rights in conformity the agreement. **REMEDIES** **DAMAGES:A monetary compensation which may be nominal or substantial depending on the harm to the land.** **AN INJUCTION: which is an equitable remedy to prevent further acts of trespass.** RE ENTRY If a person's possession has been disturbed by a trespasser, he has a right to use reasonable force to get trespass land vacated. A person, who entitled to the immediate possession, uses reasonable force and regains the possession himself, cannot be sued for a trespass EJECTMENT: This is a speedy remedy where the person, who had been dispossessed of certain immovable property, without due course of law, can recover back the property without establishing any title MESNE PROFITS: **This is a legal remedy to claim the profits made by the trespasser from the use of the land,** a person who has wrongfully dispossessed of his land may also claim compensation for the loss which he has suffered during the period of dispossession DISTRESS DAMAGE FEASANT The right of distress damage feasant authorizes a person in possession of land to seize the trespassing animal, goods or other chattels and he can detain them until compensation has been paid to him for the damage done. The idea is to force the owner of the chattel to pay compensation and after the compensation has been paid, that chattel is to be returned. **DEFENCES** 1. Consent 2. Necessity 3. Leave and licence 4. Statutory permission or legal justification 5. Right by prescription