POSSESSION SUFFICIENT TO MAINTAIN AN ACTION FOR TRESSPASS

• Date: 06 February 2019

(1) "Any form of possession is sufficient to maintain an action for trespass against a wrongdoer as long as it is clear and exclusive. It is not necessary, in order to maintain trespass, that the plaintiff’s possession should be lawful and actual possession is good against all except those who can show a better right to possession in themselves (see Halsbury’s Laws of England, 3rd Edition, Vol. 38 at p. 743 paragraph 1213)." - Per Kawu, J.S.C., in M.S. Atunrase & Ors. v. Alhaji Abdul Mojid Sunmola & Anor. Suit No. S.C. 37/1984; (1985) 16 N.S.C.C. (Pt. I) 115 at 120; (1985) 1 S.C. 349 at 366 - 367.

(2) "As a claim of trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession. See Amakor v. Obiefuna (supra). The question that must now be considered is what could amount to exclusive possession to enable a plaintiff claim in trespass to land against a defendant. This is best illustrated by reference to some decided cases. In Murana Ajadi v. Madam Dorcas Olanrewaju (1969) All N.L.R. 374 at 381, this Court per Fatai-Williams, J.S.C. (as he then was) quoted with approval the dictum of Lord Guest in Wuta-Ofei v. Mavel Danquah (1961) W.L.R. 1238 (P.C. at p. 1243) which reads: - "Their Lordships do not consider that in order to establish possession it is necessary for a claimant to take some active step in relation to the land such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacant unenclosed land which is not being cultivated there is little which can be done on the land to indicate possession. Moreover, the possession which the respondent seeks to maintain is against the appellant who never had any title to the land. In these circumstances the slightest amount of possession would be sufficient." And then went on to give reasons for holding that the plaintiff/respondent in Murana v. Madam Dorcas (supra)was in possession of the disputed land thus: - "In the instant case, quite...