trespass & injunction

Trespass to land is an unjustified interference or intrusion into land that is within exclusive possession of another. It is unauthorised and unlawful entry upon a land in possession of another, or a direct and immediate interference with another person’s possession of the land – Zenith Bank Plc. V. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207 CA. Salami V. Lawal (2008) 14 NWLR (Pt. 1108) 546. If the defendant placed a part of his foot on the Plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it. Turuku v. Sabi (2013) All FWLR (Pt.692) 1737; Amakor v. Obiefuna (1974) 1 All NLR (pt. 1) 49; Ogunbiji v. Adewunmi (1998) 5 NWLR (Pt. 93) 315 Oyewusi V. Olagbami (2018) HELAR ratio 8

Trespass to Land occurs when another wrongly and without your authority enters into your land, even by putting one foot, into the land in which you are in lawful possession of. Yakubu –v- P.H.C.N. Plc (2012) ALL FWLR (Pt 616) 529. Oyewusi V. Olagbami (2018) HELAR ratio 8

Yes. Our law is trite that one must not necessarily be the owner of a property [Land or chartels] before he/she can maintain an action in trespass against another; mere being in lawful possession of the said property suffices to give you a right of action. Giwa V Anzaku (2019) HELAR ratio 10; Oyewusi V. Olagbami (2018) HELAR ratio 7

In a sense, Yes. But where a trespasser is in actual physical possession of the land in dispute is possession is wrongful as against a person who has tittle to the land but is not in actual possession. The person in wrongful possession would not be regarded as being in possession as his wrongful act of trespass cannot in any way crystallise into possession recognizable by Law. The right to remain in possession by one in wrongful possession stands only against all those with no better claim of title. The right of a rightful owner of the land is superior and will oust that of a trespasser. See Araf –V- Onyedim (2012) All FWLR (Pt 625) Pg 265 @ ratio II & 5, Oluwole –v- Abubakare (2004) All FWLR (Pt. 226) 289; Oyewusi V. Olagbami (2018) HELAR ratio 9

Where two parties maintain competing claims to a disputed Land and both rely on acts of ownership and actual possession, the Law will ascribe actual possession to the party who proves a better title to the Land, and the other will be regarded as a trespasser. See Fasoro –v- Beyioku (1988) 2 NWLR (Pt 76) 263 [.P. 288). Istifanus v. Ismailu (2019) HELAR ratio 3; Giwa V Anzaku (2019) HELAR ratio 10; Oyewusi V. Olagbami (2018) HELAR ratio 7

In order for the Plaintiff to succeed in action for trespass, a plaintiff must properly identify the land and show that he is the owner of the Land and that he is in exclusive possession of the Land. See Akoledowo –v- Ojubutu [2013] All FWLR (Pt 692) 1820 @ Ratio 7; Oyewusi V. Olagbami (2018) HELAR ratio 7, 8 and 9

In our Law, there are five established ways of proving an ownership of Land, they are: (a) Proof by traditional evidence; (b) Proof by production of document of title; (c) Proof by acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the Land. (d) Proof of acts of long possession; (e) Proof by possession connected or adjacent Land in circumstances rendering it probable that the owner of such Land would in addition be the owner of the Land in dispute. Suleman V. Ukana(2019 ) HELAR ratio 5; Ibude v Saidi & anor (2021)HELAR ratio 2

Also to be noted is the fact that where the Plaintiff is relying on traditional evidence as proof of his title (ownership), he/she must establish facts, such as: (a) Who founded the Land; (b) How he founded the land; and (c) Particulars of intervening owners through whom he/she claims. Idundun –v- Okumagba [1976] 9-10 SC 227; Anukam –v- Anukam (2008) All FWLR (Pt. 413) 1255; Akoledowo –v- Ojubutu (2013) All FWLR (Pt. 692) 1820. Gbade V. Yisa (2017) HELAR ratio 2 If the plaintiff succeeds in proving his ownership/title to the Land so trespassed, it presupposes that he has right to maintain an action for trespass over the said Land.

The Plaintiff can establish Possessory right by showing that he/she exercises dominion over property to the exclusion of all others. See Oke –v- Oke [2006] 17 NWLR (Pt. 1008) 224 Star-Finance & Property Ltd –v- N.D.I.C (2012) All FWLR (Pt. 648) Pg. 895 @ Ratio 7. The plaintiff must also establish his of exercising of dominion over the Land/property by any of the following acts: (a) Cultivation of the piece of land (b) Erection of the building or fence thereof (c) Demarcation of Land with pegs or beacons. Nwano –v- Obaze [2012] (Pt 605) 231 @ ratio 11. Once the plaintiff establishes the acts of possession stated above on the Land, his right to maintain an action for trespass, will be justified. This is because; possession is at the heart of actions in trespass.

In order to succeed in a claim for trespass and injunction, the identity of the land and its boundaries must be established. The plaintiff must also establish that he is in exclusive occupation of the land. The land and the boundaries must be clearly established. Turuku v. Sabi (2013) All FWLR (Pt. 692) 1737 pp. 1752-1753, paras. G-B; Amakor v. Obiefuna (1974) 1 All NLR (pt.1) 49; Ogunbiji v. Adewunmi (1998) 5 NWLR (Pt.93) 315.; Onagoruwa v. Adeniyi (1993) 5 NWLR (Pt. 293) 350. Oyewusi V. Olagbami (2018) HELAR ratio 10

Trespass to land is actionable or maintainable at the suit of a person in exclusive possession of the land or anyone that has right of possession. The simple reason behind this principle is that exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. Adegbesan v. R.T.C.M.G.M (2013) All FWLR (Pt.662) 1809; Amakor v. Obiefuna (1974) 1 All NLR (pt.1) 49; Olagbemiro v. Ajagungbede III (1990) 5 SC 161, (1990) 3 NWLR (Pt.136) 37; Adebanjo v. Brown (1990) 6 SC 63, (1990) 3 NWLR (Pt. 141) 661; Thompson v. Arowolo (2003) FWLR (Pt. 164) 315. Oyewusi V. Olagbami (2018) HELAR

The Courts in one way or the other usually shield and protect the interest of owners of land once it is found that trespass has occurred. The Courts do once convinced that there is unjustified threat of trespass even suo-moto grant an equitable order of injunction against the trespasser where an injunction was not sought. In this wise, the injunction can be made as a consequential order and not amount to the Court granting what was not asked or sought. Omotayo v. Cooperative Supply Association (2010) 16 NWLR (Pt. 1218) 1; Adebanjo v. Oke (1999) 3 NWLR (Pt. 594) 154 @ 163 & 164; Sorungbe v. Omotunwase (1988) 19 NSCC (Pt.2) 252 at 268.

The Plaintiff will, apart from being entitled to have an Injunction made against the trespasser which is a ready tool to prevent further trespass, he will also be entitled to the claim of damages for general and any specific losses or inconvenience suffered. See Somorin –v- Adekambe [2012] All FWLR 1776 @ ratio

A successful plaintiff in an action for trespass to Land will be entitled to an award of nominal damages where no actual loss or damage is caused. However, where an actual loss or damage has resulted from the trespass, the plaintiff is entitled to recover an amount of damages sufficient to compensate for the actual Loss he has suffered but where a plaintiff has been wholly deprived of his Land by the act of trespass, he is entitled to compensation to the value of the interest in the Land. Also, where a plaintiff is a freeholder entitled to possession and he has been wholly deprived of his Land, he is entitled to damages which will be the value of the produce of the land during the period of deprivation subject to the proper expense of management. But in a situation where the deprivation is permanent, the plaintiff is entitled to the selling value of Land as damages. Further, where the trespasser has merely made use of the plaintiff’s Land, then the plaintiff is entitled to receive as damages, such sum as would reasonably be paid for the use, notwithstanding that the plaintiff is not by the act of the trespasser, deprived from making use of his Land himself. Aliyu –v- Dikko [2012] All FWLR (PT 632] 1714 @ ratio 2

Since both joint tenants and tenants in common of Land enjoy unity of possession in the absence of partition, one joint tenant or tenants-in-common cannot maintain an action in trespass against his co-tenant except where the latter has excluded or ousted the plaintiff from the land or commuted destructive waste of common properly. The effect of unity of possession is that each co-owner is entitled to the possession of the whole property jointly or in common with his follows, and each is entitled to the possession of the whole property jointly or in common with his fellows, and each is entitled to his share of the rents and profits of the property.

In the circumstance(s) portrayed above, the plaintiff has the following remedies: (i) To enter the land and physically remove the defendant and his belongings, or (ii) To bring an action in Court for recovery of the Land. Note that physical entry is a form of self-help which the Law of torts allows, but however, it is a dangerous and inadvisable remedy since, apart from the risk of a serious breach of the peace: (i) If the entry is forcible i.e effected by breaking outer doors or windows, or accompanied by personal violence or threats an offence will have been committed under Section 81 of the Criminal Code Act which criminalises foreful entry notwithstanding that the person is entitled to enter into that land or premises.. (ii) If more force is used than necessary to eject the wrongful possessor and to remove his belongings, the plaintiff will be, in civil action, liable for trespass to the person or to goods as the case may be, and (iii) The plaintiff will be liable for trespass to Land if it so happens that he did not have a better title or right to possession than the defendant. Therefore, the better course for the plaintiff, in the above circumstance is to bring an action for recovery of the Land as a result of the defendant’s trespass.

Yes, there exist some circumstances wherein actions/claims of trespass will fill, those circumstances are: (i) Where the action is brought by one Joint Owner against another; this is because joint tenants and tenants in common share the thing in common which is unity of possession. Therefore in the absence of partition, no one joint owner can point to any part of the Land as his to the exclusion of others. Oguchukwu –v- Chioma [1977] IMSIR 248, 254. (ii) Where a Spouse brings an action for trespass against another. As husband and wife are entitled to occupy the matrimonial home, one party cannot obtain an order to oust the other. Okocha –v- Okocha [1980] Plateau State LR 5. (iii) Residents or lodgers – A person in habitation of a house may not have the possession required to sue in trespass. Take for example, a plaintiff who resides as a member of defendant’s household is not in possession of the room his/her occupies, at best he/she is in occupation. Possession remains on the defendants even though for years he may not step into the various parts of the apartment. Chukwumah –v- Shell Petroleum Dev. Co of Nig Ltd [1993] 4 NWLR ( PT 289) 512; Nwana –v- Federal Capital Development Authority [2004] 13 NWLR (PT 889) 128, SC. (iv) Where an action is brought on a Land that forms an easement. An easement is a right attached to one part of Land which allows the owner of that Land to use the Land of another person such as by walking over it. For an easement to be enjoyed, there must be two distinct Lands, the Land to which the benefit of easement applies (dominant tenement). An easement does not make a plaintiff the owner of the path, neither does it give him exclusive possession but only right to walk over it. Therefore Plaintiff cannot sue defendant or any other person for trespass over the land. (iv) Action by render– Where a Landowner grants Land to a third party and puts the 3rd party in possession, the landowner cannot sue a person who makes an adverse claim against the third party as he no longer has any interest in the land that can be threatened by the adverse claimant. See Ohagbemiro –v- Ajagunbade III [1990] 3NWLR (PT 136) 37.

Generally, neither the Police nor any other law enforcer has a special authority to enter premises. They enjoy only those authorities statutes confer on them. Anything done outside the provisions and powers of the relevant statutes would constitute actionable trespass. For example, let us take a look at some of the powers some particular statutes confer on Police Officers. By section 7 of the criminal procedure Law [CPL] of a police officer has a warrant of arrest he may enter any place where the warrant has directed and allow him free access to arrest the suspect. If the householder refuses the police access he can break in to effect the arrest of suspect. Section 112 CPL also empowers a Police Officer armed with a search warrant to break open a house if the occupier resists him entry.
Section 45 of the Liquor Law empowers a police officer to enter any premises where liquor is sold if he has reasonable grounds for suspecting that intoxicating Liquor is being unlawfully sold there Regulation 59 of the Explosive Regulations 1964 empowers a police officer not below the rank of Assistant Superintendent of Police to enter any premises where explosives are stored at any time of the day or night. Instances of statutory powers of the Police to enter premises are not closed. Otherwise, a police officer would have a right to enter private premises only when he has the occupiers licence.

The answer is in the negative. It is only after the mortgagee has entered into possession that he can sue in trespass. This is because in the eyes of the Law, the mortgagee is a tenant for years, a tenant at will or a tenant on sufferance of the mortgagor according as default has been made under the mortgage or not.

It is trite law that a claim for trespass to land is not dependent on a declaration to title. A trespass is an injury to a possessory right and therefore, the proper person to bring an action for trespass to land is that person who was or who is deemed to have been in possession at the time of the trespass. Omotayo v. Cooperative Supply Association (2010) 16 NWLR (Pt. 1218) 1; Oluwi v. Eniola (1967) NMLR 339, p.340; Nwosu v. Otunola (1974) 4 SC 21; Pan Bros Ltd. v. Landed Property Ltd. & Anor. (1962) 2 ANLR (Pt.1) 22; Oyewusi V. Olagbami (2018) HELAR ratio 10

A trespasser does not by virtue of his act of trespass acquire lawful possession of the land. Where the rightful owner of the land is in and remains in exclusive possession of the land, a trespasser has nothing to lay claim to. Isaac v. Imasuen (2016) NWLR (Pt. 1511) 250; Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt. 825) 337 pp. 363-364; Alli v. Alesinloye (2000) 6 NWLR (660) 172.

It is settled law that a victim of trespass is entitled to the equitable order of injunction in order to forestall the further continuation of the trespass. Injunction in this wise can be granted as a consequential order suo moto even when it was not claimed or sought. Omotayo v. Cooperative Supply Association (2010) 16 NWLR (Pt. 1218) 1; Adebanjo v. Oke (1999) 3 NWLR (Pt.594) 154 @ 163 & 164; Goldmark (Nig.) Ltd. v. Ibafon Co. Ltd. & Ors (2012) 10 NWLR (Pt. 1308) 291.

It is trite law that a trespasser in possession is only entitled to sue in trespass persons who are not the true owners of the land. On the other hand, if a trespasser, even with long possession sues one who can show a better title, he cannot succeed. Mogaji & Ors v. Cadbury (Nig.) Ltd. 2 NWLR (Pt. 7) 395; Vincent Bello v. Magnus Eweka (1981) 1 SC. 101.

Possession is the primary issue to proof in an action for trespass. The issue of trespass is separable from the issue of radical title. Any form of possession, so long as it is clear and exclusive and exercised with intention to possess is sufficient to support an action of trespass against a wrongdoer. A mere trespasser who goes into possession cannot, however, by the very act of trespass and without acquiescence give himself possession against the person whom he has just ejected. Kopek Construction Ltd. v. Ekisola (2010) 3 NWLR (Pt.1182) 618; Akano v. Okunade (1978) 3 SC 129 at 137; Oluwi v. Eniola (1963) NMLR 339 at 340; Akoledowo v. Ojubutu (2013) All FWLR (Pt. 692) 1820, p.1835, para. A

Where two parties are claiming possession of a particular piece of land, 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. Oyeneyin & Anor v. Akinkugbe & Anor (2010) 4 NWLR (Pt. 1184) 265; Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) p.182; Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) p.562; Magaji v. Cadbury Nigeria Ltd. (1985)7 SC. 59. Giwa V Anzaku (2019) HELAR ratio 10

Even if there is no strict requirement for the filing of pleading before making an application for injunction, such pleadings are relevant in giving detailed particulars on the facts and other salient features of the applicant’s case and can convince the court in the exercise of its discretion judiciously or judicially in his favour. An application for an injunctive order whether interim or interlocutory is equitable in nature and as such the court is required to ensure that all conditions for its grant are satisfied. It cannot do without knowing all the facts and antecedents of the case especially where it has doubt about the applicant’s right or the nature of the subject matter. C.G.C (Nig.) Ltd V. Baba (2004) 10 NWLR (Pt. 541); Oyeyemi v. Irewola L.G. Ikire (1993) 1 NWLR (Pt. 270) 462; Isamade v. Okei (1998) 2 NWLR (Pt. 538) 455; Ezeakabekwe v. Emenike (1998) 11 NWLR (Pt. 575) p.529 SC; Osho v. Akpe (1998) 8 NWLR (Pt.562) p.492 SC; Emiri v. Imieyeh (1999) 4 NWLR (Pt. 599) p. 442 SC; Ogun v. Akinyelu (1999) 10 NWLR (Pt. 624) p.671; Ujom v Olafimihan & anor (2020) HELAR ratio 3

Where title to a disputed parcel of land is grounded in or resides in the Plaintiff the possession of the land by the defendant can only be an adverse possession, an evidence of trespass by him, except the defendant proves that he or someone else through whom he claims, has a superior title to the land. Wachukwu & Anor. Owunwanne & Anor. (2011) 14 NWLR (Pt. 1266) 1.

It is trite law that court will grant an order of injunction for the reasons of preventing irreparable damage or injury or irremediable mischief. The attitude of the court has always been that where award of damages is considered to be an inadequate remedy; the protection of the right in specie is the only mode of doing justice and this could only be achieved by granting an injunction to prevent the continuation of the alleged wrong. The Court may also be minded to granting the Order of Injunction to prevent escalation of matters and prevent the need for multiplicity of suits. Omotayo V. Co-operative Supply Association (2010) 16 NWLR (Pt. 1218) 1; Obanor V. Obanor 1976, 2 S.C 1 at 6 & 7. He must prove that not only is the act of trespass being continued but also that the Defendant has threatened or is threatening to commit further acts of trespass. In an action for damages for trespass and injunction, it is required that Plaintiff proves exclusive possession and nothing more (not necessarily ownership title) in order to succeed against a person who cannot show a better title. Moses V. Onu (2013) All FWLR (Pt. 6740 153 Ude V. Chimbo (1998) 12 NWLR (577) 169; Balogun V. Akanji (2015) All FWLR (Pt. 262) 405; Lawal V. Salami (2002) 2 NWLR (Pt. 752) 687. PP. 184 – 185, paras G-D.

There is a prima facie presumption that the person with title to a land is in possession and proof of ownership is also proof of possession. Immediately a court finds that a party has a better title to a land, his claim for trespass and injunction are easily sustained. Ayanwale V. Odusami (2011) 18 NWLR (Pt. 1278) 328.

Once there is no finding for trespass, an Order of injunction cannot be granted as there is no possession in the party to protect. The injunction order would be made to stop trespass, and so when trespass is not established there will nothing to stop or prevent. See Oyeneyin & Anor. V. Akinkugbe & Anor. (2010) 4 NWLR (Pt. 1184) 265.

Yes, where a Plaintiff in a land case claims for trespass along with claims for declaration of entitlement to the land and injunction against a defendant, title to land in question automatically becomes an issue to be determined by the court. This is because although the tort of trespass is primary one against possession, where it is coupled with the claim for injunction and damages, then the Claimant is taken to claim to be owner of the land in question. Moses V. Onu (2013) All FWLR (Pt. 674) 153; Kponuglo V. Kodadjo (1931) 12 WACA 24; Ogunbiyi V. Adewunmi (1988) 5 NWLR (93) 215; Adesanya V. Otuewu (1993) 1 SCNJ 77 pp. 183-184, paras G-A; Adeyefa & Ors. V. Bamgboye (2014) 11 NWLR (Pt. 1419) 520.

Yes. Where damages for trespass was awarded, and there is also a claim for injunction, the court will grant the injunctive relief sought in order to prevent further trespass and/or stop multiplicity of actions. Oriorio & Ors v. Osain & Ors. (2012) 16 NWLR (Pt. 1327) 560.