Trespass

The general principle of law is that it is a continuing tort of trespass for a person to remain on anothers land without that other's authority or consent and that barring any defences properly raised and sustained, which could defeat the right of the owner of such land to complain, the land owner is always entitled to protection as appropriate. See Onagoruwa Vs Akinremi & Ors. (2001) 13 NWLR (Pt. 729) 38: Adepoju vs Oke (1999) 3 NWLR (Pt. 594) 154 @ 163 – 164.

That trespass to land is the wrongful and unauthorized invasion of the private property of another and trespass to land is rooted in a right to the exclusive possession of the land allegedly trespassed.

Trespass to land is actionable at the instance of the person in possession. Exclusive possession gives the person in possession the right to retain the land and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. Respondents have proved a better title in this case.

Appellant’s issue 2 which is in respect of the non-award of damages and/or injunction as sought by him given the fact that he established a better title to the land in dispute as it were and which this Court has confirmed in the resolution of Appellant’s issue 1 above, in my considered view rides on the shoulders of the principle of law that even where a defendant is in physical possession of a parcel of land, legal possession of the said parcel of land lies on the party that proves a better title to the same.
In this kind of situation, the principle of law to the effect that possession is nine tenth of the law is not a truism. This is because the person in physical possession thereby becomes a trespasser. See the old case of ODUNUKWE V.
ADMINISTRATOR-GENERAL, EAST-CENTRAL STATE (1978) LPELR-2251(SC) wherein the Supreme Court dwelling on “whether a claim for trespass can be joined with a claim for recovery of possession” stated thus: – “We are aware that this Court has made definite pronouncements on, and pointed out the error in, the joinder of a claim for damages for trespass with one for an order of possession. We refer to the case of Aromire v.
Awoyemi S.C. 38/1969 delivered on 11/2/72 where the Supreme Court observed: “It is wrong to join a claim for trespass with a claim for possession for whilst a claim for trespass contemplates that the plaintiff is in possession, that for recovery of possession suggests that he is out of possession.” The Court further explained in the case of Jimoh Adebakin v.
Sabitiyu Odujebe S.C. 42/1970 (1972) 6 S.C. 208 at 216 that a trespasser does not by the act of trespass secure possession and if the plaintiff was always in possession then the defendant can only be liable for damages for trespass and injunction.” PER LOKULO-SODIPE, J.C.A.