Practice and Procedure

• Pages: 6-745

(5)ACTION FOR TRESPASS.

Basis of action in trespass.

“The law is settled that a claim in trespass is based entirely on possession of land, not

necessarily ownership of the land. Trespass to land, therefore, is actionable by person in

possession of the land. See Okolo v. Uzoka(1978) 4 S.C. 77; Dokubo v. Omoni(1999) 8

N.W.L.R. (Pt. 616) 647 at 660. But a trespasser who succeeds in seizing possession of land

from the true owner cannot resist an action in trespass by contending that he is the one now in

possession and not the one from whom he seized or obtainedthe land.” – PerAkintan, J.S.C.,

in Ansa v. Ishie Suit No. S.C. 92/2002; (2005) 15 N.W.L.R. (Pt. 948) 210 at 229.

Basis of action in trespass and one of claim of possession of land and distinction between

both.

“A claim in an action for trespass to land presupposes that the plaintiff is in possession, actual

or constructive of the land in dispute at the time of the trespass and that the trespasser defendant

cannot by the mere fact of his entry unto the land secure lawful possession. On the other hand,

a claim for recovery of possession postulates that the plaintiff is not in possession at the time

of the action and that he was once in possession but is at the time of the action seeking to be

restored to possessionof the land. See Aromire v. Awoyemi (supra); Tijani v. Akinwunmi (1990)

1 N.W.L.R. (Pt. 125) 237 at 247; Ernest Nzekwu & Ors. v. Madam Christiana Nzekwu & Ors.

(1989) 2 N.W.L.R. (Pt. 104) 373 at 391. Thus where a plaintiff claims that he has title over

land in dispute and which has always been in his possession, actual or constructive, he does

not agree that the defendant has any possession cognisable in law. In such case his action lies

in trespass, damages for the trespass and injunction restraining the trespass. In Jimoh Adebakin

v. Sabitiyu Odujebe (1972) 6 S.C. 208 at 216 this Court perCoker, J.S.C. highlighted and

applied this distinction. He said: “Thus it seems that the evidence accepted by the learned trial

Judge was that the plaintiff was always in possession before the defendant entered on the land

vi et armis. If that is so, a claim for recovery of possession is inappropriate for a trespasser

does not by the act of trespass secure possession in law. If the plaintiff was always so in

possession then the defendant can only be liable for damages in trespass and to an order of

injunction.” The above pronouncement was cited by this Court with approval in Banjo & Anor

v. Aiyekoti & Anor (1973) N.S.C.C. 184 at 192-193. The Court perFatayi-Williams, J.S.C. (as

he then was) at page 193 added: “The order for possession made by the learned trial Judge is

therefore irregular and is accordingly set aside. However, if the defendants/appellants are,

infact, still in possession of the land in dispute and the buildings thereon, their possession being

that of a trespasser, is unlawful and is also in breach of the order for an injunction herein

confirmed.” In my consideration the distinction between claims for damages, for trespass and

claims for possession highlighted in the case above applied with equal force in this case.

Although the statement of claim is not in the record, it is clear from the judgment of Fernandez

J. that the claim was founded in title evidenced in the Deed of Conveyance exhibit “B” dated

13th of March, 1954. These two cases bring to the fore the importance of the distinction

between claims for damages for trespass and claims for possession. In my view, the principle

in the two cases is also applicable to the instant case. By the judgment of the trial Court on the

13th of November, 1987, affirmed and confirmed by the Court of Appeal and the Supreme

Court, title over the land, subject matter of this appeal, has been finally determined to vest in

the plaintiffs/appellants. And because the law ascribes possession to the person who has title,

the plaintiffs/appellants are, in the eyes of the law, deemed to be in possession actual or

constructive. They alone are in lawful possession and the possession is exclusively since the

law does not recognise any concurrent possession by rival claimants. For the protection of the

plaintiffs/appellants’ title and possession of the land in dispute, there is in place a perpetual

injunction against the defendants/respondents who have been adjudged to be trespassers. Even

if they are in actual physical possession of the land in dispute, it is a possession not recognised

by law. Thus if the defendants/respondents are still found to be in possession, they are there in

continuation of the acts of trespass and for which prevention there subsists the perpetual

injunction. The plaintiffs/appellants no longer have any duty to initiate action for possession.

In the face of the foregoing considerations, it sounds to me preposterous to suggest the filing

of another action for possession. For the purpose of giving effect to the subsisting judgment

over the land in dispute, the plaintiffs/appellants were at liberty to approach the Court for

issuance of a writ of possession. The Court of Appeal was therefore wrong to hold that by not

setting aside the writ of possession the learned trial Judge was merely granting a relief not

claimed. The learned trial Judge Mumi Fafiade, J. in dismissing the application held that the

plaintiffs/appellants were entitled to possession and were therefore at liberty to enforce the

judgment. I endorse that opinion of the trial Court in its entirety.” – Per Tabai, J.S.C., in

Carrena v. Akinlase Suit No. S.C. 20/2002; (2008) 14 N.W.L.R. (Pt. 1107) 262 at 282 - 284.

Basis of trespass as a cause of action.

“It must be conceded to the appellant that trespass is a cause of action against infraction of

possessory rights. The appellant needs to know and accept a much more harmonious, thorough

and plausible melody instead of the discordant tune he has sang so far. His song from now on

must be that the law does not protect possession which is not exclusive. The slightest

possession in a claimant entitles him to maintain an action for trespass if his adversary is unable

to show a better title. In the instant case, although 1st defendant from whom appellant drew his

title seem to have been in actual possession of the land in dispute, such possession is not good

enough against the respondent whose traditional history reveals has a better right to possession

than the appellant see Ajero v. Ugorji(1999) 10 N.W.L.R. (Pt. 621) 1 at 4 SC; Atunrase v.

Sunmola(1985) 1 N.W.L.R. (Pt. 1) 105; Bamgboye v. Olusoga(1996) 4 N.W.L.R. (Pt. 444)

520 at 538.” – PerM.D. Muhammad, J.C.A., in Falomo v. Onakanmi Suit No. CA/L/255/99;

(2005) 11 N.W.L.R. (Pt. 935) 126 at 158.

Can a plaintiff claim special and general damages in an action for trespass.

(1) “It is the law as found by both lower Court s and I agree that a plaintiff who has also suffered

some specific loss of income on account of the trespass occasioned to him can properly as well

claim those specific losses by way of special damages as a direct and immediate result of the

said trespass. See: Uba v. Sambapeter Co. Ltd.(2003) F.W.L.R. (Pt. 137) 199 held 28 and 29.”

– PerChukwuma-Eneh, J.S.C., in N.B.C. Plc v. UbaniSuit No. S.C. 291/2008 (2014) 4

N.W.L.R. (Pt. 1398) 421 at 469.

(2) “The law is also quite certain that when a plaintiff has suffered some specific losses as to

his income in addition to general damages on account of the trespass, he can as well claim these

specific losses by way of special damages. See Uba v. Sambapeter Co. Ltd. (2003) F.W.L.R.

(Pt. 137) 199 at 284.” – Per Chukwuma-Eneh, J.S.C., in N.B.C. Plc v. UbaniSuit No. S.C.

291/2008 (2014) 4 N.W.L.R. (Pt. 1398) 421 at 458.

Can an action for trespass be within the purview of section 251(1)(e) of the 1999

Constitution. (1) “Trespass is not within the purview of section 251(1)(e) of the 1999

Constitution.” – Per Awala, J.C.A., in Adetona v. Zenith Int’l Bank Ltd. Suit No.CA/I/80/2003;

(2009) 3 N.W.L.R. (Pt. 1129) 577 at 596.

(2) “I am unable to surmise how a matter that is rooted in trespass can, by a stretch of

imagination, fall within the operation of the Companies and Allied Matters Act (C.A.M.A.).

Undoubtedly, same is not within the purview of section 251(1)(e) of the 1999 Constitution.

And parties should not attempt to saturate the Federal High Court with such matters either by

design or otherwise.” – Per Fabiyi, J.C.A., in Adetona v. Zenith Int’l Bank Ltd. Suit

No.CA/I/80/2003; (2009) 3 N.W.L.R. (Pt. 1129) 577 at 594 - 595.

Can claim for damages be considered where there is no trespass.

“Where there is no trespass, the claim for damages cannot be considered.” – Per Mukhtar,

J.S.C., in Abubakar v. B.O. & A.P. Ltd.Suit No. S.C. 110/2001; (2007) 18 N.W.L.R. (Pt. 1066)

319 at 372.

Can claim for trespass be dependent on declaration of title?

“A claim for trespass, is not even dependent on declaration of title. See Oluwi v. Enjolo (supra)

and Ekretsu & anor. v. Oyobebere & 5 ors.(1992) 11-12 S.C.N.J. (Pt. 11) 189 at 205, (1992)

9 N.W.L.R. (Pt. 266) 438. This is because, trespass is an injury to a possessory right and

therefore, the proper plaintiff in an action for trespass, is the person who was or who is deemed

to have been in possession.” – PerOgbuagu, J.S.C., in Echere v. EzirikeSuit No. SC. 350/2001;

(2006) 12 N.W.L.R. (Pt. 994) 386 at 408-409.

Can long possession of land be enough to establish claim for trespass and injunction.

“During his life, Odebunmi was not disturbed on the said land, Lawani Ojo was also never

disturbed on the same land. The above in my view satisfies the requirement of proof of root of

title which is evidence of long continuous, uninterrupted use of the land, numerous enjoyment

of the land which is cogent and positive, see Duru & Ors. v. Onwumelu & Ors. 2002, 1 Supreme

Court Report at p. 76, (2001) 18 N.W.L.R. (Pt.746) 672. The above also mean that the plaintiff

in the Court below showed sufficient evidence to entitle him to the claim of trespass as found

by the Court below, and to a claim for an injunction, where the claim for trespass and injunction

compels the proof of title to the land in issue. With the proof of title to the land in dispute, and

as the plaintiff has established evidence of long possession of use of the land, cogent and

positive, the plaintiff in the Court below can not be said to have failed to established his claim,

and the claim thereby proved is not dependent on exhibit B.” – PerOmage, J.C.A., in Opadere

v. Odebunmi Suit No. CA/I/79/92; (2003) 16 N.W.L.R. (Pt. 845) 46 at 57.

Can mere possession be sufficient to maintain action for trespass?

“Also settled, is that mere Possession, is sufficient to maintain an action for trespass. See Yusuf

v. Abina & Ors.(1968) 2 A.N.L.R. 167. Afterwards, possession means possession of that

character of which the thing possessed is capable. See Mogaji v. Cadbury Fry (Export) Ltd.

(1972) 2 S.C. 97 at 104 and Oguche v. Illiyaso & Ors. (1972) 2 U.I.L.R. 424. This is why, the

entry into land by a trespasser, does not ipso facto,put the trespasser, into possession.” – Per

Ogbuagu, J.S.C., in Echere v. EzirikeSuit No. SC. 350/2001; (2006) 12 N.W.L.R. (Pt. 994)

386 at 408.

Can plaintiff be entitled to damages for trespass where no damage is caused.

“The law is that a plaintiff is entitled to nominal damages for trespass where no damage or loss

is caused Umunna & Ors. v. Okwuraiwe & Ors. (1978) 6-7 S.C. 1” – PerIyizoba, J.C.A., in

Baytide (Nig.) Ltd. v. Aderinokun Suit No. CA/L/730/2010; (2014) 4 N.W.L.R. (Pt. 1396) 164

at 207.

Can special and general damages be awarded in an action for trespass.

(1) “Thus, the award of special damages in an action for trespass does not and should not affect

a deserving award of general dam ages in the same action. See Ediba v. Azege(1996) 7 S.C.N.J.