TRESPASS TO LAND

An action may be maintained by an occupant in possession of land against any intruder who enters the land without authority. The form of action that existed for this type of unauthorized entry of land was trespass quare clausium fregit.

Close in colloquial terms meant enclosure but trespass may be committed on unenclosed plots of land. Therefore, the tort of trespass to land is committed by any unjustified interference with the plaintiff's possession of land. It may be committed in any one or more of the following ways.

• Unauthorized entry unto land
• Remaining on the land after the right to enter the land has elapsed or by abusing the right of entry.
• Placing or projecting some object upon the land.

Note that since trespass to land is a wrong against possession, any unlawful entry upon land or building in the possession of another is actionable. To succeed therefore in an action for trespass, the plaintiff must establish that he is in possession of the land. See Raphael Ogbimi v. Niger Construction Ltd (2006) 6 JNSC pt 24 pg 649 at 672-673 where the Supreme Court stated as follows:

'Trespass to land is actionable at the suit of the person in possession of the land. The person can sue in trespass even if he is neither the owner nor the privy of the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish a better title. Therefore, anyone other than the true owner, who disturbs his possession of the land, can be sued for trespass...'

For a situation where someone who does not have possession of land can sue for trespass, see Soleh Boleh Ltd v. Ayodele (1989) 1 NWLR pt 99 pg 549 at 551. The Supreme Court had this to say:

'Where the trespass has caused permanent injury to the land, thereby affecting its value, a person not in possession but who is entitled thereto in reversion can sue for injury to his interest without waiting till his future estate falls into possession.

See also Ugorji v. Onwu (1991) 3 NWLR pt 178 pg 177, Amakor v. Obiefuna (1974) 3 SC pg 67.It should be noted that even a person in wrongful possession can bring an action for trespass against any person who unlawfully enters the land. Note further that trespass to land is actionable per se and therefore, mere entry upon land or building in the possession of another person without lawful authority is actionable trespass even when no actual damage is caused.